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How a Judge’s Torture Ruling Jeopardizes Guantanamo’s Prosecution Strategy


In late 2006, in an effort to turn the page on a legacy of state-sponsored torture, prosecutors in the George W. Bush administration launched an experiment at Guantánamo Bay. They assembled teams of law enforcement agents to try to extract voluntary confessions from men who had spent years in brutal conditions in isolated CIA prisons.

A military judge declared this experiment a failure, at least in one case.

In a sweeping decision, Col. Lanny J. Acosta Jr. has dismissed a confession that federal agents at Guantánamo Bay obtained in 2007 from a Saudi prisoner accused of planning the suicide bombing of the USS Cole on October 12, 2000. The attack in the port of Aden, Yemen, killed 17 American sailors.

Officers testified that they were courteous and friendly to prisoner Abd al-Rahim al-Nashiri and made it clear to him that his participation in the January and February 2007 interrogations was voluntary.

But Mr. Nashiri, arrested in 2002, had spent four years in secret CIA prisons, where interrogators used violence, threats and punishment to get him to talk. The judge wrote on August 18 that “any resistance the defendant might have been inclined to put up when asked to incriminate himself had been intentionally and literally torn from him years before.”

In other words, Colonel Acosta found that Guantanamo’s “clean team” interrogations, as they were called, could not undo the damage done by the CIA’s torture and years of coercive conditioning. prisoners to answer questions upon request.

The 50-page decision is the first major decision, based on evidence presented in preliminary hearings, on the admissibility of interrogations by federal agents supposedly building new cases against men who spent years in secret prisons in the city. CIAs known as black sites.

Although the ruling does not set a precedent and prosecutors have already appealed, it has shaken the foundations on which prosecutors have built their cases against the men accused of plotting attacks against al-Qaeda.

Its impact has yet to be seen in the court’s best-known case, charging five prisoners with conspiracy in the September 11, 2001, attacks. Both are death penalty cases, and the Defense attorneys in the 9/11 case are also calling witnesses to claim the confessions were tainted by CIA torture. But another military judge is presiding over this case and is not bound by the Cole decision.

But Jeffrey D. Groharing, a veteran prosecutor in the 9/11 pretrials, called the defendants’ confessions at Guantánamo Bay “the most crucial evidence in this case.”

Next month, prosecutors in the case plan to call the testimony of Frank Pellegrino, a retired FBI agent. As part of a “clean team” in 2007, he listened to Khalid Shaikh Mohammed, the man accused of being the mastermind of the 9/11 attacks, describe his role. The government says Mr. Mohammed willfully incriminated himself during his fourth month at Guantánamo Bay, nearly four years after being taken into US custody.

By that time, CIA interrogators had faked Mr. Mohammed 183 times. He had also been chained up, left naked, sleep deprived and isolated – many of the same techniques that were first used on Mr. Nashiri. Both men were threatened with returning to “difficult times” if they did not cooperate with their captors in the black sites as part of the rendition, detention and interrogation programme.

Colonel Acosta’s decision “sends the message that it is not in fact possible to clean up the files against the people who participated in the RDI program”, said Stephen I. Vladeck, professor at the University of Texas who studied the court of war. “It’s not as if this decision definitively settles this question for each case. But both in its reasoning and in its symbolism, I think it will set a de facto precedent.”

Many problems are the same. Like Mr. Nashiri, two of the men accused of conspiring with Mr. Mohammed in the 9/11 attacks were held incommunicado by the CIA at Camp Echo in Guantanamo in 2003 and 2004 – the same prison complex where federal agents made the accused confess in 2004. 2007.

US military doctors diagnosed Mr. Nashiri with post-traumatic stress disorder for which, Colonel Acosta noted, he apparently never received treatment. Next month, the judge handling the 9/11 case is expected to hear medical experts explain why they recently said one of the accused 9/11 conspirators, Ramzi bin al-Shibh, was not competent enough to be tried or pleaded guilty.

In his ruling quashing Mr Nashiri’s confession, the judge cited forensic psychiatrist Michael Welner, who had testified as a government expert.

Dr. Welner had argued that, based on his interpretation of the prison documents and transcripts, Mr. Nashiri had freely chosen to confess. But the judge rejected that view, citing Dr. Welner’s testimony in which he also said that if someone had a choice between compliance and “extreme pain or suffering, then that’s not a real choice.” “.

Dr. Welner is also a government-paid expert on the issue of Mr. bin al-Shibh’s mental health.

“Since the beginning of the 20th century, medical knowledge has concluded that there is no medical reason to perform what is called ‘rectal feeding’,” Colonel Acosta wrote. “Although fluids can be absorbed through the rectum in an emergency, food or nutrition cannot.”

The case is not over. The judge approved other evidence that prosecutors want to use in his trial, including hearsay testimony, to be given by federal agents, that people in Yemen saw Mr. Nashiri near the port of ‘Aden two months before the bombers blew up the Cole.

Colonel Acosta also allowed prosecutors to present what Mr. Nashiri said before a military panel at Guantanamo later in 2007. At a status hearing, he admitted to knowing Osama bin Laden and receiving from him money for an unrealized business project in the Persian Gulf, but he denied being a member of al-Qaeda and retracted his earlier confession, which he said was aimed at ending his torture.

It remains to be seen whether prosecutors, as they did in the 9/11 case, are proposing that Mr. Nashiri plead guilty to certain crimes in exchange for a life sentence, rather than the possibility of an execution.

Colonel Acosta will retire from the army next month after 25 years of service. A new judge, Lt. Col. Terrance J. Reese of the Marines, has been appointed to take the 12-year-old case to trial.



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