My ex-wife has been representing a Guantanamo detainee for a few years now.  She took a case she couldn't afford and has devoted a significant portion of her resources the last few years to seeking justice for a foreign stranger accused of committing terrorist acts.  The struggle has been difficult, because her opponent has been the richest, most powerful country in the world--the government of the United States of America.  Her inability to sleep well while someone tortured in her name is the reason I fell in love with her forty years ago.  We scarcely communicate, now that our wonderful children are grown, but we did exchange emails today.  The impersonal letter she forwarded to me, the subject of this diary, brought me to tears.  This diary is to share one small development in a long, difficult struggle being carried forward by a few Americans who stand up for human rights.

The letter to Leon Panetta is direct and factual--it concerns simple physical evidence.  Consider, there are now sites in the world containing instruments of torture bought as part of our federal budget.  There is extensive evidence that these instruments have been used by officials of the U.S. government in an organized program which violated fundamental tenets of justice embraced by all civilized people.  Looking forward may be preferable; destroying the ability to look back is probably criminal. From the cover letter distributed by the ACLU:

Attorneys for detainee Abd Al-Rahim Hussain Mohammed al-Nashiri today sent a letter to CIA Director Leon Panetta requesting that the CIA "black site" buildings, interrogation cells, prisoner cells, shackles, water boards and other equipment be preserved for inspection and documentation. Al-Nashiri, who is now detained at Guantánamo, was held in the secret CIA prison facilities from 2002 to 2006. Director Panetta has ordered the closure of CIA black sites, but al-Nashiri’s attorneys are concerned that the CIA intends to destroy the sites – including the buildings and the equipment used to interrogate and torture al-Nashiri and other detainees – and in doing so destroy evidence of his mistreatment.

Abd al-Rahim al-Nashiri is most likely a violent man who hates America.  He is widely believed to have conceived, planned, and executed the bombing of the USS Cole, killing 17 U.S. sailors.  But I cannot state with certainty that this is true because all charges against him have been dropped.  The narcissistic Bush administration was too busy creating its own reality to concern itself with careful gathering and presentation of the evidence which would have proved al-Nashiri guilty and thus brought him to justice in the name of the American people.  Instead, they indulged a fetish for torture and in doing so, trampled all over the crime scene, so to speak.  We are left with a complex mess which will not vanish in the face of rhetoric of either the America-loving or America-hating variety.

Al-Nashiri's defense attorneys have sent a letter to Leon Panetta.  The ACLU's dissemination of that letter is entitled Guantánamo Attorneys Urge Panetta To Preserve CIA Black Site Evidence.  The word "urge" seems a bit weak here.  The letter is informing Mr. Panetta that "decommissioning" of CIA sites may involve destruction of exculpatory evidence.

We are counsel for Abd Al-Rahim Hussain Mohammed Al-Nashiri. Mr. Al-Nashiri is currently detained at Guantanamo Bay Naval Base. He has been there since September, 2006. >From sometime in late 2002 until 2006 he was incarcerated in the secret prison facilities run by the Central Intelligence Agency (CIA).

Your predecessor, General Michael V. Hayden, has admitted that Mr. Al-Nashiri was subjected to water boarding, which is a form of torture, while in the custody of the CIA. According to the publicly released report from the International Committee of the Red Cross (ICRC) which was dated February 14, 2007, and entitled ICRC Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody, water boarding was only one of the many forms of torture inflicted on Mr. Al-Nashiri while in the custody of the CIA.

According to that report, while in CIA custody, Mr. Al-Nashiri was also forced to stand with his wrists shackled to a bar in the ceiling for prolonged periods of time—extending to several days— and was threatened with sodomy and with the rape and arrest of his family members. Many of the prisoners the ICRC interviewed did not want their names used in the report. As such, though the ICRC report lists much more cruel, degrading and inhuman treatment, the report is not specific as to what additional treatment was inflicted on Mr. Al-Nashiri while held in the CIA’s "black" sites.

Throughout that time he was not able to communicate with his family, a lawyer or anyone. Effectively the CIA "disappeared" him for four years while it tortured him at will and beyond the eyes of the world.

The CIA and other government agencies also admitted to the purposeful destruction of at least ninety-two video tapes of interrogations and observations of prisoners in its black sites, specifically including the destruction of video tapes of water boarding and other observations of Mr. Al-Nashiri.

Had Mr. Al-Nashiri known that the CIA possessed these video tapes and intended to destroy them, he would have demanded their preservation. However, neither he, his lawyers nor the courts learned of the CIA’s plan until after the tapes had been destroyed and now they are forever gone.

In light of the destruction of video taped evidence of the torture inflicted upon Mr. Al-Nashiri and the newly released report from the ICRC describing still more horrific tortures, we noted with interest your message to CIA personnel on April 9, 2009, in which you stated that the CIA would be "decommissioning" the CIA secret facilities.

Although we welcome your decision to cease the secret detention and mistreatment of prisoners of the United States Government, we are concerned that the CIA intends to actually destroy the sites—including the buildings and the equipment used to interrogate and torture Mr. Al-Nashiri—before Mr. Al-Nashiri has had the opportunity to fully investigate his conditions of confinement. We write to avoid the destruction of more evidence—namely the actual secret facilities themselves.

Mr. Al-Nashiri was charged in the Military Commission with offenses that carried the penalty of death. Although those charges have now been dismissed, we fully expect the government to prosecute Mr. Al-Nashiri and again charge him with offenses that could carry the death penalty. In fact the government is now actively working to determine in what forum he will be prosecuted.

Regardless of the forum in which Mr. Al-Nashiri is tried, evidence of his conditions of confinement will be relevant in assessing the reliability of any of his statements and any statements of other prisoners similarly held that the government plans to use against him. This evidence will also be highly relevant during any sentencing proceeding. It is exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and he will be entitled to it.

The CIA’s secret prison facilities and the inquisition-like treatment meted out to its prisoners were a tragic, immoral and illegal period in our history that we all hope has come to an end. But its effects are enduring, especially on someone like Mr. Al-Nashiri who, according to the ICRC report, lived through the horror chambers of at least three different secret prisons. Those buildings, interrogation cells, prisoner cells, shackles, water boards and other equipment must be preserved until such time as we have an adequate opportunity to document it and a court can determine the relevance and materiality of this evidence. As a criminal defendant, the Fifth, Sixth and Eighth Amendments to the United States Constitution will entitle him to discovery of exculpatory evidence and this is surely exculpatory evidence.

Therefore, we are requesting that you preserve all the secret sites. By this letter you are now on notice that we will be seeking discovery and inspection of this highly relevant evidence in whatever court Mr. Al-Nashiri finds himself. We have already lost the video tapes which would have allowed a jury to see what happened to Mr. Al-Nashiri in those secret prisons. We cannot lose the remaining tangible evidence of the actual prisons themselves and the instruments of torture within them.


Lieutenant Commander

Captain, USAF

Military Defense Counsel

Freedman Boyd Hollander Goldberg & Ives P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102

Freedman Boyd Hollander Goldberg & Ives P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102

Gilroy, Kammen
One Indiana Square, #150
Indianapolis, IN 46204

Civilian Defense Counsel

John Rizzo, CIA General Counsel (Acting)
Central Intelligence Agency
Washington, DC 20505
Fax: 703-482-1739

Eric Holder, Attorney General
United States Department of Justice
Office of the Attorney General
950 Pennsylvania Avenue
Washington, D.C. 20530
Fax: 202-307-6777

The White House
ATTN: Greg Craig, Esq., White House Counsel
Office of White House Counsel
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500

Today, I am thinking of the U.S. flag, to which many of us have pledged our allegiance.  It is a symbol, deriving its sole meaning from actual things and events.  To the French in 1945, the U.S flag derived much of its meaning from the 133 men killed, 648 wounded, 85 lost, and from the 76 armored vehicles, 7 cannons, 27 halftracks, and 133 other vehicles sacrificed by the 2nd Division in the Battle of Normandy.  When we salute the flag, we are saluting these fighters and this material which our nation gave to the cause of individual freedom from tyranny.  We can stand with sacred pride when the stars and stripes stand for the individual rights and dignities enshrined in the Declaration of Independence and enforced in the constitution.  What happens to a people who pledge their most honorable selves to a symbol emblematic of water boards, shackles and officials committing torture?

I notice Michael Steele is accusing Obama of blaming America first.  His categories are confused.  We call for Obama and Holder to blame the enemies of human rights first, last and always.  Even if those enemies were violating our sacred ideals from within the U.S. goverment.

Originally posted to geomoo on Tue Apr 14, 2009 at 11:41 AM PDT.

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