GUANTANAMO BAY NAVAL BASE, Cuba _ A military judge on Tuesday ordered the Department of Defense to preserve its copy of the CIA "torture report," but left undecided whether attorneys for the men accused of orchestrating the 9/11 terrorist attacks will be allowed to read it.
Three Pentagon attorneys who saw Army Col. James L. Pohl's four-page order said it also fell short of a request by defense attorneys to secure the full, classified 6,700-page Senate study of the CIA's clandestine overseas prison program in a war court safe.
Instead, the judge, who earlier in his career forbade the Bush administration from razing Iraq's Abu Ghraib prison, blocked any notion of the Pentagon returning its rare copy of the report to the Senate Intelligence Committee, something chairman Sen. Richard Burr, R-N.C., has requested.
The Obama administration has partially declassified the report's executive summary, a damning examination of CIA interrogations at the so-called black sites during the George W. Bush administration. But lawyers want the lurid details of detainees kept naked, deprived of food and sleep, rectally abused, waterboarded and shackled in stress positions to challenge both trial evidence and the possibility of military execution of the five men accused of conspiring in the worst terrorist attack on U.S. soil.
Defense attorney Jay Connell called the decision "a small step toward accountability." He represents Ammar al-Baluchi, accused of helping send money to the hijackers who killed nearly 3,000 people on Sept. 11, 2001.
"During the last public preservation order for black sites, however," Connell said, "the prosecution secretly obtained an order to decommission a black site without notice to the defense. The only real path to accountability is declassification of the full report."
Defense lawyers last month urged Pohl to preserve a copy of the report before Obama leaves office. Prosecutor Army Brig. Gen. Mark Martins refused to tell Pohl whether there was in fact a rare copy of the report at the Pentagon _ until the judge issued a court order instructing the chief war crimes prosecutor to find out.
At issue, in part, was whether a war court judge could reach from his bench at this U.S. Navy base in Cuba to order other areas of the government beyond the Pentagon to preserve one. On Dec. 15, prosecutors confirmed that the Pentagon "does have a copy of the complete report, which it keeps in an unidentified secure location," Connell said.
Two others have likewise ordered preservation of the report:
President Barack Obama decided to archive his copy with his presidential papers, meaning it could be reviewed for declassification and possibly be made public in 2028.
Federal Judge Royce Lamberth has ordered the Department of Justice to put a copy in the top-secret safe for classified Guantanamo litigation maintained by the U.S. District Court in Washington, D.C.
The Obama administration has yet to say whether it will challenge the order, or comply.
Lamberth has been handling the mostly nascent federal court appeal of another former CIA captive, Abd al-Rahim al-Nashiri, accused of orchestrating al-Qaida's bombing of the USS Cole off Yemen that killed 17 sailors on Oct. 12, 2000.
Al-Nashiri's lawyers want a copy of the report before the Saudi's Guantanamo trial, too. No trial date has been set in either case.
