Cells at Guantanamo Bay where KSM & other 9/11 suspects are being held. Photo handed out by US military to press. (Shared by Carol Rosenberg)

A week of pretrial proceedings at the Guantanamo Bay war court is scheduled. One of the key issues that will be deliberated is whether the defense for five men on trial for their alleged involvement in the September 11th attacks can have access to documents and information on the White House or Justice Department’s authority for the CIA’s Rendition, Detention & Interrogation (RDI) program.

Khalid Sheikh Mohammad, Walid Muhammad Salih Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali , and Mustafa Ahmed Adam al Hawsawi each face charges of conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking and aircraft and terrorism.

The defense believes evidence the government has to prosecute the men at the Guantanamo military commission consists of evidence obtained through abuse or torture. At the bare minimum, the defense seeks “evidence that the program existed; that particular techniques were employed on defendants and/or witnesses; and that the program was approved at the highest levels of government despite objections by high-level officials.”

As stated in a defense motion filed at the end of December of last year, “By its nature, torture affects the admissibility of evidence, the credibility of witnesses, the appropriateness of punishment, and the legitimacy of the prosecution itself.” The ability of the defense to suppress “admissions from trial by demonstrating that they are the product of torture” is key. All defendants have a right to challenge the “veracity and credibility” of statements by “showing that it was extracted under duress.” Proof of pretrial punishment or torture could reduce a defendant’s sentence  from death to “less than death.” Any evidence that the White House “instigated and approved ‘torture, brutality and similar outrageous’ conduct that DC Circuit and other courts have suggested may warrant dismissal of criminal charges” is material the defense should have to prepare for trial.

The government disagrees. Prosecutors contend that “classified information” is not discoverable simply because the defense suggests it could be “theoretically relevant.” It must be actually relevant, material to the preparation of the defense and necessary.

Additionally, the government argues it has broad authority to make the sole determination of whether material in the government’s possession should be produced to the defense. It suggests under discovery evidence rules, “The government decides which information must be disclosed. Unless the defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final.” It uses the code word “noncumulative,” to describe information it will produce, which essentially means if one document shows something happened, like torture, it may withhold another document that further confirms that act took place.

The government apparently does not intend to use any statements the accused made “while in the CIA RDI program.” However, what if statements made in CIA custody were used to form the basis of questioning by interrogators at Guantanamo when the suspects were no longer being held at black prison sites?

Though the government does not give clear particular reasons for why the documents or information would be irrelevant or not discoverable, the government wants the judge to deny the defense motion.

The defense motion outlines exactly what information the defense seeks to obtain:

  • Information regarding White House consideration of authority for RDI (Request I)
  • The exercise of any purported power of the White House regarding authority for the RDI program (Request 2)
  • Documents from the Office of Legal Counsel, some of which have been made public but are heavily redacted (Request 3)
  • Specific information about CIA communications with the White House and the DOJ concerning RDI, including information about the Survival, Evasion, Resistance and Escape (SERE) program, specific detainees, interrogation techniques employed and conditions of confinement (Request 4)

It further indicates the defense seeks “critical evidence establishing ‘outrageous conduct’ at the highest levels.” In terms of policy, the defense is particularly interested in White House decisions related to the Detainee Treatment Act of 2005, “which banned torture,” and any “evidence pertaining to White House-level orders to employ torture.”

From the defense motion, it is clear the defense lawyers for the 9/11 suspects need to go through this process to clearly establish that they were, in fact, tortured. This is where argument could be focused. Certainly, in the same way that prosecutors do not want trials involving leakers to involve putting the government “on trial” for over-classification of information, the government does not want the defense to be able to put the government on trial for torture during a trial against those suspected of being involved in the September 11th attacks.

The decision to not use any statements from when the accused were in custody is a calculated decision to prevent the defense from being able to obtain evidence of what they went through when they were in the custody of the CIA. And as the defense suggests in a response to the government, “The government will, presumably, attempt to justify its treatment of the defendants by claiming that the treatment was intended to serve the ‘legitimate non-punitive governmental objective’ of intelligence gathering.”

According to the defense, the “intelligence” could have been obtained without torture, but the defense believes, though the White House “barred the military from using inhumane methods,” it “did not s imilarly prohibit the CIA from employing them, on the theory that the United States was not legally required to apply Common Article 3 to al Qaeda detainees, and thus “humane” treatment was optional.” The CIA, despite Article 16 of the Convention on Torture, was allowed to employ “cruel, inhuman and degrading methods” and made such methods permissible under United States law.

In December, the Senate Select Committee on Intelligence adopted a nearly 6,000-page report on the CIA’s use of torture on detainees. Reuters reported it contains “details of each detainee in CIA custody, the conditions under which they were held, how they were interrogated, the intelligence they provided and the accuracy of CIA descriptions of the program to the White House.”

The report is not currently available to the public but should be available to all Americans. And now, as the defense tries to obtain details on the CIA torture for their use, one can see an obvious reason why the government would want to keep the Senate report concealed: it likely confirms everything the defense suspects about how the 9/11 suspects were abused, mistreated and tortured and the government wants to do everything it can to make sure that does not get in the way of being able to convict and sentence the accused to death.

It cannot be overstated how important it is to Guantanamo military prosecutors that torture not become a critical aspect of proceedings. Prosecutors have already moved to prevent the accused’s “thoughts and experiences” from becoming public during trial by designating them as classified information. Now, on top of this move, the prosecutors will do everything they can to stop the judge from accepting arguments that evidence of CIA torture should be made available to the defense.

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