Guantanámo Judge to Prosecution: Turn Over the Torture Evidence

Last month, a military judge dealt a significant blow to U.S. prosecutors' efforts to suppress torture evidence in the Guantanámo military commissions.

In a ruling in the U.S.S. Cole case, unsealed last week, Judge James Pohl told prosecutors they must hand over CIA black site information to the defense attorneys of Abd al-Rahim Hussayn al-Nashiri. Back in April, Judge Pohl similarly ordered the prosecution to give extensive information to Mr. al-Nashiri's lawyers about his "4-year odyssey" through the CIA's rendition and torture program. In the new ruling, Judge Pohl confirmed the core of the earlier order and issued important findings that will reverberate not only in Mr. al-Nashiri's case but also in the 9/11 case, where one of the five defendants has already asked for similar information.

Judge Pohl found that Mr. al-Nashiri was subjected to "enhanced interrogation techniques" – the government's euphemism for torture and cruel treatment, such as waterboarding and stress positions. More importantly, he ruled that information about that abuse is relevant and helpful to the defense. In particular, it will be relevant at sentencing because Mr. al-Nashiri faces the death penalty. His lawyers have said they will argue that he cannot be executed because he was tortured by the CIA – an argument that 9/11 defense lawyers will also likely make for their own clients.

Judge Pohl also said that the use of torture techniques will impact whether any statements Mr. al-Nashiri made afterwards are too tainted to be used at trial. Under the military commissions rules, the prosecution must convince the judge that the statements were "voluntarily given" in order to use them. The prosecution has already indicated that it will seek to use statements Mr. al-Nashiri made to the FBI after he arrived at Guantánamo. But with the new ruling, the prosecution will be required to turn over the information the defense says it needs to argue that these statements were tainted by the CIA's earlier torture and abuse.

Judge Pohl's order requires the prosecution to give the defense lawyers 10 categories of information, including where Mr. al-Nashiri was held, the conditions in each site, whom he interacted with, and how he was rendered from site to site. What's not clear is the extent to which the prosecution will seek to provide summaries or other substitutes for some documents or to redact the names of personnel. According to Mr. al-Nashiri's lawyers, this will be litigated in the coming months. Still, the ruling has definitively established that the information is relevant and helpful to the defense, and any new requests by the prosecution to narrow what it has to turn over will be limited by the ruling.

That's a sea change, although a long-delayed one on a fundamental fair trial right: access to evidence. Judge Pohl has decided to step down from this case to concentrate on the commission trial of the 9/11 defendants. It's now up to his successor to ensure this important decision is properly implemented.

Learn more about torture and other civil liberties issues: Sign up for breaking news alertsfollow us on Twitter, and like us on Facebook.

View comments (3)
Read the Terms of Use

Anonymous

"Fair" trial to WHOM? The goddam asshole who probably really did do this? You wouldn't even be asking for torture information if you thought the guy was pure as the drive snow. Or completely innocent of his crime and could get a 'not guilty' on his own behavior.
I had a trial of my own before; in fact I had TWO trials and during the second one your "poor little put-upon defendant," as you see all the criminals as being, was making gestures with his hand to make it look like he was shooting a gun and then surreptitiously pointing at me while I was testifying on the stand to what happened during the time he was holding us hostage inside the bank.
He did it so long that even the judge noticed. In the middle of my testimony, the judge interrupted and asked the defendant what he thought he's doing.
The guy put on that innocent-lamb look, pointed to himself and said "Me? I'm listening to her talk. I'm not doing anything else."
When the judge said it looked like the guy was making gestures of shooting a gun and pointing at me, the guy denied doing it.
So the judge restarted the proceedings, I continued talking and the guy started making those gestures at me again.
The judge stopped me again, and said "Will counsel for the defense please approach the bench?" And when they did he said we were going to take a 15 minute recess at which time one of them will explain to their client why it's a really bad idea to make gun-shooting gestures with his hand while the witness is recounting what happened to her, and that he sincerely hopes the defendant has come to that understanding before he returns to the courtroom.
I thought it was a lost cause and that he'd do it again but he never did it after that.
Which proves my point of how they're NOT all being victimized by everyone else. They're doing as much victimizing as they're receiving. And I'll be damned to Dante's hell before I'll feel sorry for someone who's that downright contemptuous of the world.

Anonymous

Geeze, is there anywhere online devoid of shills?

I'm glad we're having a return to law and order via legitimate prosecution/defense rather than this bullshit legal regime based on secrecy and fraud.

LeslieWilliams

fellow American citizens please go to Google and YouTube and type in learning disabled woman being tortured in San Diego this is an American citizen military non consensual human experimentation there's thousands of us all over the internet begging for help no one helps us go to youtube type in Timothy w. bio ethics issues then observe all of the YouTube videos 2 the right and listened to the testimonys and still no one helps us maybe one day the ACLU will

Stay Informed