Lawyers Seek Supreme Court Review Of Alleged Torture As Accused USS Cole Bomber Awaits Capital Trial

Lawyers for Abd al Rahim al-Nashiri, the man accused of plot­ting the bomb­ing of the USS Cole in 2000, are seek­ing U.S. Supreme Court inter­ven­tion to pre­vent his tri­al before a mil­i­tary tri­bunal in which Nashiri faces the death penal­ty if con­vict­ed. The peti­tion for a writ of cer­tio­rari asks the Court to allow Nashiri’s lawyers to chal­lenge his mil­i­tary deten­tion — and efforts to try him in a mil­i­tary tri­bunal rather than a civil­ian court — because the CIA admit­ted­ly sub­ject­ed him to 14 years of ​“phys­i­cal, psy­cho­log­i­cal and sexual torture.” 

Hundreds of pages of doc­u­ments chron­i­cle Nashiri’s expe­ri­ences. These doc­u­ments include evi­dence that Nashiri was sub­ject­ed to water­board­ing, forcible sodomy, star­va­tion, rec­tal force-feed­ing, sleep depri­va­tion, being placed in a cof­fin-sized box for a total of 11 days and a box the size of an office safe for 29 hours, and being threat­ened with a racked gun and a revved pow­er drill while being sus­pend­ed, naked and shack­led, from the ceil­ing of a cell in a black site one CIA agent described as ​“the clos­est thing he has seen to a dungeon.” 

Dr. Sondra Crosby, an expert on the med­ical and psy­cho­log­i­cal effects of tor­ture, wrote in October 2015 that Nashiri, ​“is most like­ly irre­versibly dam­aged by tor­ture that was unusu­al­ly cru­el and designed to break him.” She pre­dict­ed that Nashiri is like­ly to ​“decom­pen­sate ful­ly dur­ing his trial.” 

The heav­i­ly redact­ed descrip­tions of tor­ture con­tained in Nashiri’s peti­tion are based on a pros­e­cu­tion time­line of his time at black sites, a grad­ual col­lec­tion of declas­si­fied infor­ma­tion, and recent­ly pub­lished mem­oirs by a for­mer CIA con­tract psy­chol­o­gist. All of the inter­ro­ga­tion prac­tices are also doc­u­ment­ed in the U.S. Senate Select Committee on Intelligence’s con­tro­ver­sial 2014 report, known as ​“The Torture Report.” 

Nashiri’s case presents a range of impor­tant fac­tu­al, legal, and evi­den­tiary issues, but with­out Supreme Court inter­ven­tion, he will not have any legal mech­a­nism to obtain appel­late review of them pri­or to tri­al. Although Nashiri is con­sid­ered one of Guantánamo’s 15 most ​“high-val­ue” pris­on­ers, detained in a secret loca­tion in a spe­cial jail known as ​“Camp Seven,” his lawyers argue he is actu­al­ly an intel­lec­tu­al­ly lim­it­ed al-Qaeda foot sol­dier, not a crim­i­nal mas­ter­mind. In a fed­er­al civil­ian court, evi­dence obtained as a result of the tor­ture to which the CIA admits Nashiri was sub­ject­ed would be inad­mis­si­ble; but in a mil­i­tary tri­bunal, there are ques­tions whether that evi­dence may be admit­ted and whether the fact and extent of his tor­ture may be used as evi­dence in his defense. In addi­tion, Nashiri’s case involves poten­tial­ly sen­si­tive nation­al secu­ri­ty mat­ters and CIA video­tapes of some of Nashiri’s inter­ro­ga­tions may have been destroyed, leav­ing ques­tions both as to what infor­ma­tion the gov­ern­ment may with­hold and what sanc­tions, if any, there should be for evi­dence it may have destroyed.