GUANTÁNAMO BAY, Cuba – In response to the admission by Susan J. Crawford, the top official overseeing the Office of Military Commissions, that the reason she refused to send a detainee's case to trial is because "we tortured [him]," military lawyers filed a motion late Wednesday in Guantánamo to withdraw the charges against Abd al-Rahim Hussain Mohammed al-Nashiri, who is being charged for his alleged involvement in crimes including the USS Cole bombing. The government has admitted to waterboarding al-Nashiri when he was held in CIA custody.
Al-Nashiri's military counsel are working in conjunction with civilian attorneys from the American Civil Liberties Union's John Adams Project.
In an interview published in the Washington Post on Wednesday, Crawford said she refused to send detainee Mohammed al-Qahtani's case to trial because his treatment by military interrogators "met the legal definition of torture." Yet Crawford decided to "refer the charges" for al-Nashiri's prosecution in December, long after the government admitted the CIA waterboarded him.
"It appears that it is perfectly acceptable to proceed with prosecutions if a
detainee has been tortured by the CIA, but not if a detainee is tortured by the
military. This is an astounding distinction that makes absolutely no sense,"
said Anthony D. Romero, Executive Director of the ACLU. "What we are seeing here
is the final verdict on the Bush administration's Guantánamo policies, a sham
system in utter chaos where the Constitution is completely disregarded, torture
is widespread and legal standards are made up on the fly. The Bush
administration's reprehensible legacy of torture and abuse will not disappear
when Guantánamo closes. When a high-ranking Pentagon official admits the
government tortured detainees, there is no choice but to launch a thorough
investigation and prosecute these crimes. We have to look backward in order to
move forward."
"The government has clearly stated that the CIA
waterboarded Mr. al-Nashiri to extract statements from him. How does this
treatment not qualify as 'torture' under Crawford's 'legal definition'?" said
Nancy Hollander, one of the attorneys from the ACLU's John Adams Project who is
representing al-Nashiri. "It is absurd to throw out one case because a detainee
was tortured, but proceed with others who have also been tortured and abused.
Moving forward with this case is just another last-ditch attempt by this
administration to salvage an unsalvageable system."
The ACLU's John Adams Project is a partnership with the National Association of Criminal Defense Lawyers sponsoring expert civilian attorneys to assist the under-resourced military defense counsel in the Guantánamo military commissions.
A copy of the legal motion is available at: www.aclu.org/safefree/detention/38346lgl20090114.html