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Gitmo's Defense Lawyers Are Still In The Dark A Year After The Torture Report

A year since the Obama administration begrudgingly agreed to release the Senate's torture report, Guantanamo Bay Naval Base remains a stark reminder of its fiercely secretive policies.

Posted on December 9, 2015, at 9:08 a.m. ET

Charles Dharapak / AP

GUANTANAMO BAY NAVAL BASE, Cuba — The car pulls over onto a side access point at the very end of Kittery Ridge Road on Guantanamo Bay Naval Base. It’s early morning in Cuba, and the sun is just peeking over the rugged hills that frame the island’s coastline. Ahead is a checkpoint, a bright blue roof on thick white posts. About a half mile past that toward the Caribbean Sea, the dark shadows of guard towers poke up from a seaside cove, the skeleton of Guantanamo Bay Detention Facility’s Camp Delta.

“This is about as far as I can take you,” the officer in the driver’s seat says, pausing for a few minutes before turning around.

The new Guantanamo Joint Task Force commander Adm. Peter Clarke, who took over in November, decided to double-down on a supposed long-standing policy, that the military trials of the alleged 9/11 conspirators are wholly and completely separate from the notorious facility that holds them. If you’re down here to cover the hearings of alleged 9/11 mastermind Khalid Sheikh Mohammed, the latest of which is slated for the week of Dec. 7, you absolutely can’t tour the detention facility where he and his four co-conspirators are kept.

Not that you can any other time either. The joint task force hasn’t let press into the prison in months. The next time the task force plans to it’s expected to be tightly controlled, with little access to prison personnel, inmates, or the notorious facilities where they were tortured a decade ago.

That torture was documented in painstaking public detail a year ago Wednesday with the release of the executive summary of the Senate Intelligence Committee's gruesome torture report. The summary publicly confirmed for the first time the atrocities that took place just beyond that checkpoint and a handful of other secret overseas black sites, where terror suspects were subject to waterboarding, rectal feeding, and a whole swath of other interrogation techniques now considered torture.

And yet, despite vows of transparency, the White House continues to walk a delicate line, both at Guantanamo Bay and in its dealings with torture. It advocates transparency while quietly working to bury as much of its predecessors’ history as possible — if not through its own actions, through the enabling of others. Nowhere, perhaps, is this contradiction more evident than in the tropical bay off Cuba’s southeast coast.

Despite years worth of access requests from defense teams, lawyers say they've seen little improvement since the report's summary was released last December.

"Nothing has changed since the release of the redacted executive summary of the [Senate torture] report," James Connell, a lawyer for 9/11 suspect Ammar al-Baluchi said after court Tuesday, adding that defense teams still have access only to the redacted, public version of the 500-page document.

The Obama White House, through its military commissions team, has continued to refuse access to the full, still-classified torture report or even the unredacted executive summary, despite counsels' possession of adequate top-secret clearances. Chief military commissions prosecutor Brig. Gen. Mark Martins said in February that the prosecution team was combing through the full report to determine whether defense teams were entitled to see the full report or any of the millions of documents it cites. He told reporters Saturday that that process is ongoing.

Echoes of the torture program have stayed on this beach, reverberating through the aging facility that houses the nearly 15-year-old joint task force and military commissions process. Fourteen years since the first War on Terror prisoners arrived here, and nearly eight since a younger Barack Obama promised to close it, this facility remains paralyzed by a judicial process that is in large part hamstrung by the CIA’s torture of the alleged 9/11 conspirators.

Emerging as central to the military commissions’ conclusion is the Intelligence Committee’s torture report, which defense lawyers say bolsters claims that their clients’ harsh treatment at the hands of the U.S. government taints any testimony — past or future — they provided to investigators, and could void the country’s moral authority to seek capital punishment. The Obama White House has said it will not use any evidence obtained through torture in the case against the five remaining 9/11 suspects: Khalid Sheikh Mohammed, Ramzi Binalshibh, Mustafa Ahmed al-Hawsawi, Ammar al-Baluchi, and Walid bin Attash, all of whom were at some point held and interrogated at CIA black sites.

"There have been minor sort of technical improvements," Connell said, explaining that lawyers could now talk openly in public court sessions about their client's torture, and were slowly getting some of the defendants' notes about their experiences approved for release. "I believe that there are some items that are
being declassified now that would not have been declassified before the report."

“Frankly, I think it's a travesty that cleared personnel at the commissions didn't receive an unredacted copy of the summary when the redacted copy was released last year,” said Alka Pradhan, another lawyer for al-Baluchi. “We have requested access to both the unredacted summary and the unredacted full report, and we've also requested general access to the documents cited in the report. We can't really cite those documents with specificity in discovery requests because many of the footnotes themselves in the [Intelligence Committee] summary are incomplete.”

A standing motion requests defense counsel receive access to the full report, and several other motions demand other CIA-related documents be provided through discovery. Neither motion has been resolved, though queries regarding the Bush-era Department of Justice torture memos are slated to be addressed here this week.

As questions over Guantanamo’s future linger, it becomes apparent that the Obama administration has crafted a deceptively transparent operation on this relatively quiet base: Come to Guantanamo. Go to the checkpoint. Talk to people. See the guard towers. Freely explore the borders of the U.S.’s most notorious military facility.

Left unsaid is the Obama administration's trademark catch that has underscored the torture report’s year in the public eye: Don’t ask too many questions. Prodding a witness on the torture report Tuesday, defense lawyer David Nevin was halted by a shout from the prosecution table.

“Don’t ask the question,” the presiding judge said, rushing Nevin along. “Next question.”

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.