Judge to Decide Whether Taint of C.I.A. Torture Extended to Guantánamo

More than 22 years after Al Qaeda bombed the U.S.S. Cole and nearly 12 years after a prisoner was first charged with plotting the attack, a judge heard final arguments on a fundamental question in the pretrial phase of the case: Can the accused bomber’s confession, after years in C.I.A. custody, be used against him?

The judge, Col. Lanny J. Acosta Jr., acknowledged that potentially relevant information was still being given to defense lawyers in the case, but he said it was time to resolve a key obstacle in the long wait for the death-penalty trial of Abd al-Rahim al-Nashiri. Colonel Acosta will retire from the Army in September and has been determined to wrap up a portion of the pretrial phase focusing on the legacy of C.I.A. torture.

In closing arguments, he confronted several issues straight on, including whether what the C.I.A. did to the defendant — waterboarding him, depriving him of sleep, holding him nude in solitary confinement — constituted torture or cruel and inhuman treatment.

“I do not concede that at this time,” replied Edward R. Ryan, a prosecutor from the Justice Department.

By day’s end, however, Mr. Ryan read from a filing that the Justice Department submitted in Superior Court in Washington, D.C., on Jan. 31, 2022, conceding that, in this case, what Mr. Nashiri said in C.I.A. custody “should be treated as ‘statements obtained by the use of torture or by cruel, inhuman or degrading treatment.’”

Mr. Ryan devoted much of his argument to reading from a 34-page account of the interrogation by federal agents and intercepted communications from the prisoner in the months after he reached Guantánamo Bay that cast him as a boastful and at times arrogant prisoner who spoke to his interrogators freely.

Mr. Nashiri voluntarily incriminated himself “about his role in the sneak attack bombing of the U.S.S. Cole that resulted in the death of 17 naval service members,” Mr. Ryan said.

Mr. Ryan said that during the three-day interrogation at issue in January and February 2007, government agents told Mr. Nashiri his participation was voluntary.

To illustrate that Mr. Nashiri understood this, Mr. Ryan quoted from intercepted advice Mr. Nashiri gave another prisoner at Guantánamo that “meeting with these people is not mandatory. Deny everything.”

But rather than deny everything, Mr. Ryan said, the defendant admitted to being “Bilal,” a man who rented a house and moved money used in the attack by two suicide bombers on the American destroyer in a harbor in Aden, Yemen, on Oct. 12, 2000.

Annie W. Morgan, a defense lawyer, portrayed the Saudi prisoner as a broken man at the time of his 2007 interrogations. He had already been interrogated 200 times in C.I.A. custody and had no reason to believe that “another American in another polo shirt” coming to question him would not hurt him.

“There is nothing voluntary when you assess the totality of the circumstances,” Ms. Morgan said.

She reminded the judge that Mr. Nashiri’s questioning by different interrogators — so-called clean teams — at Guantánamo in 2007 was held in Camp Echo, the same facility on the U.S. Navy base that had served earlier as a secret C.I.A. prison, a black site.

Mr. Nashiri was held there in 2003 until he “was kicked out of Guantánamo Bay for behavior issues,” she said. He was sent to another C.I.A. black site, this one in Europe, as punishment and “was raped,” she said, referring to the time a C.I.A. employee forced a breathing tube into his rectum in a discredited medical procedure. Four months after his return to Guantánamo in September 2006, the F.B.I. carried out the interrogations in Camp Echo, which had been repurposed for military use.

The judge asked about testimony and records from 2006 and 2007 that portrayed the prisoner at the time as projecting free will, sometimes belligerent, controlling the pace of interrogations and aware of his rights.

Ms. Morgan pointed to the U.S. government’s recent disclosure of a secret cache of videos of Mr. Nashiri being forcibly removed from his cell in 2006 and 2007. “This is someone who has given up,” she said. Some of the videos were screened for the judge on Friday in a classified portion of the closing argument that excluded both the public and the defendant.

She also cited a recently disclosed C.I.A. “exploitation plan” from 2004 that described Mr. Nashiri as not able to engage in conversation, struggling to answer yes or no questions and showing signs of dyslexia.

A crux of the question confronting the judge is the principle of attenuation, how to get an untainted confession after a coerced one. Mr. Ryan said the “clean team interrogations” at Guantánamo in 2007 met the legal standard of a change in time, change in place and change in identity of the questioner.

Judge Acosta sounded skeptical. He said legal precedents were based on episodes that did not compare to what happened to Mr. Nashiri in the black sites. At one point, he ticked off this list of his treatment: “The waterboarding, the box, the walling, the slaps, etc., the way in which he was shackled, solitary confinement, no bedding, concrete floor, stripped, shaved.”

After a pause, he added, “sleep deprivation.”

The judge cited testimony from the psychologists who as C.I.A. contractors waterboarded Mr. Nashiri in Thailand in 2002. They had said their “enhanced interrogation techniques” were intended to create a social contract — as long as the prisoners cooperated, they would not return to “the bad times.”

The judge acknowledged this week that prosecutors were still finding and preparing classified evidence for the case, including more videos from Guantánamo that were being sanitized of certain national security secrets before the judge and defense lawyers could see them.

Colonel Acosta had earlier indicated that the three-week hearing that ended Friday would be his last on the case, and that he would issue rulings on key questions until his retirement.

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