WASHINGTON – Military prosecutors have requested that information obtained from the torture of a detainee in Guantánamo Bay be removed from the file and that their previous position that the information could be used in a preliminary trial against the man be reversed.
According to the law, prosecutors in military commission proceedings are prohibited from producing evidence derived from torture. But in May the judge, Colonel Lanny J. Acosta Jr. ruled that while the jury might not see this type of evidence, they could use it when deciding pre-trial matters.
Biden Administration lawyers were concerned by the decision as they would be expected to defend the use of such information in appeals courts. The ruling, the first known case in which a military judge allowed prosecutors to use information obtained through torture, also has a major impact on all cases in Guantánamo.
Guantánamo Chief Prosecutor for a Decade, Brig. Gen. General Mark S. Martins, cited a torture testimony which clashed with senior officials who questioned his authority. The dispute played a role in his unexpected decision to retire from the army 15 months early on September 30.
The prisoner, Abd al-Rahim al-Nashiri, is a Saudi man accused of orchestrating the 2000 bombing of the US Navy destroyer Cole by al-Qaeda off Yemen, in which 17 seamen were killed.
It was about the efforts of Mr Nashiri’s lawyers to learn more about the reasons for a US drone attack in Syria in 2015 that killed another man suspected of being an al-Qaeda bomber, Mohsen al- Fadhli. To pursue a possible defense argument, they tried to find out if the United States had already killed men it believed were the masterminds of the Cole bombing.
Prosecutors asked the judge to end the investigation, referring to a secret telegram that reported that Mr Nashiri had told CIA agents that Mr Fadhli was not involved during his interrogation in a black place in Afghanistan .
Mr. Nashiri’s attorneys protested the use of the CIA information, adding that the detainee made the revelation because the interrogators used a broomstick in a particularly cruel manner, which made him scream.
The overarching question of whether defense lawyers can still obtain classified information about the drone attack has yet to be decided by the judge. But he sided with the prosecutors and decided that he could take into account what Mr Nashiri had said in deciding the matter. In response, the defense lawyers filed an urgent complaint with a higher court asking for it to be overturned. Government lawyers have yet to respond.
But on Friday, prosecutors asked Judge Colonel Acosta to remove information about the CIA interrogations from the files. However, they asked him to keep the essence of his verdict, which stated that a judge could sometimes consider such information while recognizing that “statements obtained through torture are necessarily of the most suspicious reliability.”
In doing so, they wrote in a six-page file that “can serve the justice industry” and “advance this case in the direction of legal proceedings”. It was signed by General Martins and two other prosecutors.
Defenders called the move inadequate and said they would continue to seek an undo.
“The overturning of sentences citing evidence obtained through torture but not your request that the judge be free to use torture in court or the judge’s decision that it is lawful does little,” said Captain Brian L. Mizer of the Navy, Mr. Nashiri’s senior military defender.
Mr. Nashiri, 56, has been held since 2002 and has been in CIA custody for four years. Its trial should begin in February 2022, but that timetable is debatable as the coronavirus pandemic has paralyzed progress in the pre-trial trial in Guantánamo.
The judge has scheduled a two-week hearing on the case starting September 20. The court last met in January 2020.