Military Judge Allows Information Gained From CIA Torture in Terror Case The Arleigh Burke class guided missile destroyer USS Cole is shown at sea approximately one month before being attacked by a terrorist-suicide mission which killed 17 U.S. sailors and injured approximately 36 others during a refueling operation in the port of Aden, Yemen, on Oct. 12, 2000. (U.S. Navy/Getty Images)
By Charlie McCarthy | Friday, 04 June 2021 08:01 AM
Defense attorneys in the death penalty case of a man accused of plotting the U.S.S. Cole bombing asked a higher court Thursday to reverse a military judge’s decision to consider information obtained through C.I.A. torture in pretrial proceedings.
Lawyers for Abd al-Rahim al-Nashiri, a Saudi prisoner awaiting trial at Guantánamo Bay, said it was the first time a military judge at the war court is publicly known to have agreed to consider information obtained through torture, The New York Times reported Thursday.
Army Col. Lanny J. Acosta Jr. ruled May 18 that prosecutors may cite the information – to be used narrowly, not necessarily for the truth of it – before a jury begins hearing a case.
"No court has ever sanctioned the use of torture in this way," defense lawyers wrote in a 20-page filing that asked a Pentagon panel, the U.S. Court of Military Commission Review, to intervene in the case.
"No court has ever approved the government’s use of torture as a tool in discovery litigation" or as "a legitimate means of facilitating a court’s interlocutory fact-finding."
Nashiri, 56, is accused of planning Al Qaeda’s suicide bombing of the U.S.S. Cole off Yemen in October 2000, which killed 17 sailors. It also is alleged he planned the attack on an oil tanker two years later, when a crew member was killed.
Nashiri has been held since 2002, with the first four years in C.I.A. custody.
His trial had been scheduled to begin in February 2022, but that date is in doubt after the coronavirus pandemic delayed progress in the legal proceedings at Guantánamo.
The next hearings are scheduled for September.
In a March classified court filing, prosecutors attempted to limit a line of questioning by defense lawyers about a drone in Syria in 2015 that killed another suspected Qaeda bomber, Mohsen al-Fadhli.
As they pursue a possible defense argument that more senior or complicit plotters already have been killed by the U.S., Nashiri's lawyers have sought information about several Persian Gulf drone attacks.
Prosecutors aiming to block the inquiry invoked something classified that Nashiri told C.I.A. interrogators, according to a defense filing, "in the first weeks of his captivity when he was actively and brutally tortured by the Central Intelligence Agency."
The prosecutors' move was a major departure from the practice of building cases around interrogations carried out by F.B.I. agents in so-called "clean teams" at Guantánamo in 2007.
Defense lawyers asked the judge to reject the prosecutors’ filing, claiming Nashiri gave the information while U.S. agents cruelly used a broomstick while questioning him. They added the agents' actions alarmed observers and caused Nashiri to cry out.
Colonel Acosta ruled prosecutors were permitted to use the information for a limited exception "but only to provide context on a discovery issue in dispute.”
Acosta added that in creating the military commissions, Congress prohibited the jury of military officers from receiving evidence obtained by torture, cruel, inhuman, or degrading treatment.
However, Acosta said a judge could consider such information sparingly while recognizing that "statements obtained through torture are not necessarily of highly suspect reliability."
The colonel warned lawyers to proceed "with caution" if they want to rely on such information to support a factual assertion in the proceedings.
Georgetown University law professor David Luban told the Times he was concerned with Acosta’s ruling because "torture evidence sneaks in through the back door."
Nashiri's lawyers accused Acosta of "moral blindness" in their Thursday filing.
This is not the first time Acosta has drawn attention for a ruling.
In November 2019, he ruled prosecutors in the Nashiri case misrepresented to defense lawyers what happened to the suspect in C.I.A. custody.
The Times said defense attorneys have had little success in obtaining favorable pretrial decisions from the Court of Military Commissions Review. They must file there, however, to challenge the military judges at the civilian U.S. Court of Appeals for that District of Columbia Circuit.