As the clock ticked toward transfer of power, California Democrat Sen. Dianne Feinstein made an 11th-hour plea to departing Secretary of Defense Ash Carter to send his rare copy of the so-called CIA “Torture Report” to the Guantánamo war court for safekeeping, a filing by the judge revealed this week.
No filing suggests that Carter did it, and the senator’s office has yet to receive a reply. But Pentagon spokesman Air Force Maj. Ben Sakrisson said Wednesday that the Pentagon did write Feinstein, and “the response to the Senator’s request is currently going through appropriate coordination.”
READ THE FEINSTEIN LETTER.
At issue: Concerns that the Trump administration will scoop up all existing copies of the damning report about the CIA Rendition, Detention and Interrogation Program that waterboarded some captives, rectally abused others and held at least 119 foreign prisoners out of reach of the International Red Cross or attorneys during the George W. Bush administration.
Feinstein distributed copies of the 6,700-page document, created when she chaired the Senate Intelligence Committee, to President Barack Obama and some of his Cabinet members for review and to learn lessons about the period. Her successor, Republican Sen. Richard Burr of North Carolina, requested the return of all Executive Branch copies last year, prompting fears they could be destroyed or disappear forever into a classified Congressional safe.
At the war court, the military judge in the Sept. 11 death-penalty case, ordered the Department of Defense on Jan. 10 to safeguard a copy. But Army Col. James L. Pohl, the judge, chose not to order a copy delivered to the military commissions Top Secret safe outside Washington, D.C., for safekeeping.
A filing released by Pohl, the chief of the war court judiciary, shows Feinstein urging him to do so on Dec. 19, a month before Trump’s inauguration. “The failure to immediately transmit the study to the military commissions could result in serious and potentially irreversible consequences,” Feinstein wrote.
“Access by the chief judge to the study is potentially critical to the prospects for successful trials,” she also wrote the chief judge.
A declassified 500-page summary of the report suggests there are entire chapters on the abuse of the men who were brought to Guantánamo from the spy agency’s “black sites” and charged as the alleged plotters of the hijackings that killed nearly 3,000 people on Sept. 11, 2001. The case is in pretrial hearings that are considering, among other things, how much evidence the U.S. defense attorneys can see.
Feinstein’s letter to Pohl also reminded him that he is “considering the adequacy of substitutions provided by the government for documents related to the CIA’s Detention and Interrogation Program. He or another judge may determine that the ability to assess those substitutions, which are informed by the government’s review of the study, requires direct access to the study by the judge him or herself.”
The chief war court prosecutor, Army Brig. Gen. Mark Martins, argues the report itself is not evidence and, anyway, that defense attorneys for the men whose treatment is described in it are not entitled to it as a legislative work product. Although ordering it be protected, Pohl has yet to decide whether to order the prosecution to provide copies to the U.S. lawyers for the accused terrorists.
“Contrary to the assertion by the prosecution that the study is the ‘opinions and analysis of the legislature,’ ” Feinstein wrote, “the study, which is over 6,700 pages long and includes approximately 38,000 footnotes, is a fact-based narrative that summarizes over 6 million pages of mostly CIA documents.”
Before leaving office, Obama chose to archive his copy of the study of CIA interrogations used in secret overseas prisons, meaning it could be declassified and made public at the earliest in 2028.
A federal judge has also ordered a copy of the report be delivered to his court for safekeeping, but the Obama Justice Department resisted that request. On the eve of the Trump inauguration Judge Royce Lamberth threatened the U.S. government with a contempt hearing if it destroyed the document.