As Benjamin Wittes and I noted a few weeks ago, these past few weeks have produced some interesting litigation activity regarding the Senate Intelligence Committee’s interrogation report. In the last days of the Obama administration and the first few days of the Trump administration, things appear to have picked up even more.
As far as we know, there are at least four cases in which counsel for Guantanamo detainees have filed motions requesting that the SSCI report be preserved in some form:
- Abd al-Rahim al-Nashiri’s military commission case
- Nashiri’s habeas case in the U.S. District Court for the District of Columbia
- The 9/11 military commission case
- Abu Zubaydah’s habeas case in the D.C. district court
Recently, we have seen action in the latter three of these cases.
In February 2015, Nashiri’s defense counsel filed a motion for the military judge to either provide the defense with a full copy of the SSCI report or preserve a copy of the document under seal, a motion which the judge denied. Some time in November or early December 2016, Nashiri’s counsel in his habeas case put forward a similar motion, requesting that a copy of the document be held under seal with the court. As Ben noted, Judge Royce Lamberth granted the motion on December 28th. Despite the government’s filing of a motion for partial reconsideration and clarification, or at least a stay, Lamberth reiterated his order on January 19th.
Defense counsel in the 9/11 military commission case filed a motion requesting access to the report in April 2014 (after the executive summary of the document was released to the public), and a motion requesting either access to the report or for the report to be preserved under seal in January 2015. On January 13, 2017, following renewed argument on the motion during pretrial hearings, military judge Colonel James Pohl ordered the Department of Defense to preserve its copy of the report, though he did not require the government to provide a copy of the report to be held under seal with the military commission.
This leaves Abu Zubaydah’s habeas case. The detainee’s counsel filed an initial motion to provide the court with a “complete and unredacted” copy of the report on November 18, and an emergency request for a timely decision on the original motion on January 17. On January 19, Judge Emmet G. Sullivan issued a minute order compelling production of the report, to be held under seal with the court:
MINUTE ORDER. It is hereby ORDERED that Petitioner’s Emergency Request for a Timely Decision on his Motion to Compel the Respondent to Produce for the Court a Complete and Unredacted Copy of the SSCI Report on the CIA Detention and Interrogation Program, ECF 463, is GRANTED for the reasons stated therein. Respondent immediately shall preserve a complete and unredacted electronic or paper copy of the entire Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program (2014) (SSCI Report).
And it is FURTHER ORDERED that a complete and unredacted copy of the SSCI Report shall be deposited with the Court Security Officer by no later than February 10, 2017 for secure storage under the terms of the Amended Protective Order for Habeas Cases Involving Top Secret/Sensitive Compartmented Information and Procedures for Counsel Access to Detainees at the United States Naval Station in Guantanamo Bay, Cuba, in Habeas Cases Involving Top Secret/Sensitive Comparted Information, Case Nos. 08-mc-442 (TFH) (Docket No. 78) & 08-cv-1360 (also Docket No. 78) (D.D.C. January 9, 2009). Signed by Judge Emmet G. Sullivan on 1/19/2017.
This rash of activity on the SSCI report is hard to disentangle from the results of the election and the presidential transition. While counsel for the detainees and human rights advocates were already concerned over the eventual fate of the report—given both efforts by the Senate Intelligence Committee’s Republican majority to regain custody over copies of the document, and the reportedly accidental destruction of the CIA Inspector General’s only copy—their concern was magnified by the imminent presidency of Donald Trump, who has promised not only to “load [Guantanamo] up with some bad dudes” but to return to waterboarding and “a hell of a lot worse.”
Counsel for Nashiri write as much in their reply brief to their initial motion:
Petitioner nevertheless is compelled to request this relief because of the real risk that this specific record will be destroyed before Petitioner can litigate the merits of any number of claims which are available to him via habeas corpus. Similar evidence, documenting Petitioner’s illegal torture at the hands of the government, has already been improperly destroyed and the requested preservation order does nothing more than prevent this from happening again (emphasis added).
Likewise, counsel for Abu Zubaydah cite the argument made by David Nevin, counsel for Khalid Sheikh Mohammad, before Judge Pohl:
Most importantly, during the colloquy for a motion requesting that the military commission compel discovery of the SSCI Torture Report, David Nevin, Lead Counsel for Khalid Sheikh Mohammad, expressed to Military Judge Pohl his extreme concern over the very existence of the report in the gentlest manner possible: “I just wanted to ask...that you rule sufficiently in advance of January the 21st, [so] that your ruling is not overtaken by events.” No one felt the need to ask what Nevin meant, and Judge Pohl issued his order on January 10, 2017. As Nevin no doubt knew, president-elect Trump has expressed disdain for those, like the Feinstein-led SSCI, who have rejected the government’s use of torture against alleged terrorists.
The heightened relevance of the political situation does not appear to be lost on the judiciary, either. As Judge Lamberth wrote the day before Donald Trump’s inauguration, somewhat testily denying the government’s motion to reconsider:
Respondents are no doubt aware that this Court has had a contempt trial and found an agency in contempt when it destroyed an agency head’s hard drive the day of a prior Inauguration. This Court is confident that respondents will not want a contempt trial here when the Court’s Order is crystal clear.
The relevant documents noted above, including Judge Lamberth’s January 19th order, Judge Pohl’s January 13th order, Judge Sullivan’s January 19th minute order, and the initial motion and emergency request by Abu Zubaydah’s counsel are posted in full below.