‘Torture Report’ could help defense of accused 9/11 plotters

·Senior National Affairs Reporter

The Senate Intelligence Committee’s bombshell report on the CIA’s interrogation program has armed defense attorneys representing accused terrorists held in the military prison at Guantanamo Bay with a powerful argument against capital punishment and the integrity of the system in which they are being tried.

The report reveals that the men accused of planning the September 11 attacks, as well as Abd al-Rahim al-Nashiri, who’s on trial for plotting the USS Cole bombing, were subjected to what the CIA called “enhanced interrogation” techniques, which included waterboarding, rectal feeding, prolonged sleep deprivation and being shackled in “stress” positions for days at a time.

Lawyers for the men plan to request access to the full report — only 11 percent of which was declassified this week in summary form — and now have a road map of which CIA documents they will ask the military commissions judge to give them access to in order to prove that their clients were tortured to the point that they became psychologically unstable.

Until now, defense attorneys have not been allowed to talk about the specifics of their clients’ allegations of torture, because the military commission system has considered those details classified.

The release of the summary has already put more details into the public record, and it will put pressure on the commissions to transparently address the issue of torture in deciding the men’s guilt and punishment.

“That’s a cloud over the proceedings,” said Jim Harrington, who represents accused 9/11 plotter Ramzi bin al-Shibh. Harrington and other attorneys will file motions requesting access to the full report once the proceedings start up again. (The slow-moving trial has been stuck in preliminary hearings for more than two years.)

The report summary revealed that Harrington’s client’s interrogation plan at a CIA black site had included “walling, the facial hold, the facial slap ... the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation beyond 72 hours, and the waterboard.”

A few months after the 9/11 suspects were transferred from CIA custody to Guantanamo, a “clean team” of FBI investigators interrogated them again. The military commissions system does not allow intelligence that was gathered in black sites because it’s considered to have been tainted by torture. But the prosecution has asserted that the FBI clean team’s testimony is fair game, a finding that the 9/11 defense lawyers have challenged. Now Harrington and his fellow defense lawyers could have important new ammunition to support their argument that the torture their clients suffered was too damaging for the clean team’s findings to be admissible. 

“The question is  is that enough of a separation from what happened to these guys before to say this really is a voluntary statement,” Harrington said.

Meanwhile, Rick Kammen, who is representing al-Nashiri, said he plans to file a motion to dismiss the case against his client based on outrageous government conduct. He also believes the revelations will help guard against the death penalty should al-Nashiri be found guilty in a military trial.

The report revealed that al-Nashiri’s interrogators in a CIA black site told their bosses in Washington that they believed he was being cooperative and that further punishment could cause him to “suffer … permanent mental harm.” CIA headquarters ignored that advice, sending in a new interrogator to put al-Nashiri’s arms above his head in a “stress position” for 2.5 days, run a drill near his body, hold a gun near his head and threaten to have his mother sexually abused in front of him. Al-Nashiri was also “rectally fed” while in CIA custody.

Kammen believes the government thus knowingly pushed his client over a mental edge and no longer has the right to administer punishment, especially not capital punishment.

“Whoever [al-Nashiri] was in 2003, the government has to now concede that he’s not the same guy,” Kammen said. “They killed that guy already. So they just want to kill the body of the person now. The whole thing just strikes me as really barbaric.”

There’s some precedent for this argument.

Military law prohibits “pretrial punishment” and says defendants must have charges dismissed or be offered some other form of relief if they were punished before they had the opportunity to face trial. The defendants in these cases did receive such pretrial punishment and thus arguably would be entitled to relief. But the 2009 law authorizing the military commission system left out any mention of pretrial punishment.

Lt. Col. Myles B. Caggins III, a spokesman for the military commissions at the Defense Department, did not respond to a request for comment on whether the full report would be included in the trial.