In a first, former CIA captive appeals Guantanamo trial to Supreme Court

GUANTANAMO BAY NAVAL BASE, Cuba — Lawyers for the man accused of orchestrating the USS Cole bombing have asked the U.S. Supreme Court to intervene in the military tribunal at Guantanamo using accounts of the captive’s CIA torture drawn from declassified documents and an interrogator’s recent memoirs.

The petition with hundreds of pages of supporting documents describes Abd al Rahim al Nashiri being sodomized, kept naked and kenneled like a dog, crammed into a box the size of an office safe and being threatened with a running power drill while hanging shackled and nude from a cell ceiling.

And that’s from the portion that isn’t blacked out.

New documents include an Army sanity board report and a prosecution chronology of the captive’s time in the black sites. Both are heavily redacted.

In the petition, the lawyers ask the justices to let them challenge Mr. Nashiri’s U.S. military detention in federal court — now, before his Guantanamo death-penalty tribunal — because the CIA subjected him to years of “physical, psychological and sexual torture.”

They also ask the justices to resolve the open legal question of when the “War on Terror” began.

A lower court ruled that civilian courts should stay out of the Nashiri case until the Saudi’s capital war-crimes trial is over. His is the first former CIA captive to appeal to the Supreme Court.

At the war court last week, defense attorney Rick Kammen notified the tribunal judge, Air Force Col. Vance Spath, of the once-classified filing. Lawyers for the Saudi submitted the document to the Supreme Court on Jan. 17. It took the court’s “Classified Information Security Officer” two months to decide which parts the public could see.

Large portions of the supporting documents are completely blacked out, and perhaps 20 percent of the petition.

Mr. Nashiri is accused of orchestrating al-Qaida’s Oct. 12, 2000, attack on the USS Cole, a warship on a refueling stop off Aden, Yemen. Seventeen U.S. sailors were killed and the destroyer was incapacitated when two suicide bombers in what looked like a garbage skiff pulled up alongside it and blew up the bomb-laden boat.

In some parts, the Supreme Court petition seeks to make its case for a review by drawing from the recently published memoirs called “Enhanced Interrogation” of former CIA contract psychologist James Mitchell. Its subtitle is, “Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America,” and it offers a defense of the spy agency’s behavior in the clandestine offshore prison program.

Mr. Nashiri was “a really small guy” who slipped through his straps on the waterboard, Mr. Mitchell says in one account. The documents furnished the court include photos of the board — images the public can’t see.

Lawyers say the filing bundles together a drip, drip, drip of declassified information to paint a more complete picture of what happened to him.

Mr. Nashiri’s lawyers include a page from another CIA operative’s memoir — “Hard Measures” by former director of the National Clandestine Service, Jose Rodriguez — to note one CIA interrogator challenged the label of Mr. Nashiri as a “mastermind.” The interrogator called Mr. Nashiri “the dumbest terrorist I have ever met.”