Defense Lawyers for 9/11 Suspects Seek Evidence of CIA Torture for Use at Trial

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.”

Defense Lawyers for 9/11 Suspects Seek Evidence of CIA Torture for Use at Trial

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.
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