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By Spencer Ackerman
01.24.13 -- 6:30 AM
The last people you might expect to want to see the CIA’s secret torture prisons kept intact are the people who were tortured there. But the defense lawyers for the 9/11 co-conspirators are arguing that the CIA’s so-called “black sites” need to remain open, untouched and exactly as they were when top al-Qaida operatives were abused.
The CIA torture program isn’t on trial at Guantanamo Bay. The five accused 9/11 conspirators are, and they face the death penalty. But the legal maneuver brings to light an irony of post-9/11 justice: The military tribunals that remain the bane of civil libertarians might be one of the last venues to investigate torture.
On Monday at Guantanamo, Army Col. James Pohl, the judge in the 9/11 tribunal, will hear a longstanding motion filed by the defense team to “preserve any existing evidence of any overseas detention facility used to imprison any witness in this case.” The gambit, explains James Connell, a Defense Department civilian who represents defendant Ammar al-Baluchi, seeks to treat the black sites like crime scenes — something the Justice Department has been reluctant to do.
It’s not that the defendants want others taken to the black sites. It’s that, as Connell tells Danger Room, “If a site is still open, it’s evidence.”
Some of the treatment experienced at the black sites by the five defendants, which include the confessed 9/11 mastermind Khalid Shaikh Mohammed, include being doused with water for the simulated drowning known as waterboarding; being kept in contorted “stress positions”; and being deprived of sleep for extended periods, sometimes as a result of the stress positions. But the defense hasn’t been able to review any official material about what went on inside the black sites — something crucial to its legal strategy, since the military commissions are supposed to exclude evidence obtained through “the use of torture, or by cruel, inhuman, or degrading treatment.” (.PDF)
Emphasis on supposed to. “The government has not yet provided any discovery or information about our clients’ treatment at the black sites,” Connell says. “If the trial were tomorrow, I would have no way of introducing it.”
The CIA sent 14 detainees from the black sites to Guantanamo in 2009. President Obama forbade the CIA in 2009 from holding any other detainees. But the CIA didn’t build the black sites, it rented them, in places like Romania, Poland and Thailand. And since they’ve been closed, they’re at risk of being destroyed or modified by their host countries in such a way that will prevent anyone outside of the torture program from ever knowing what exactly went on there.
Connell isn’t even asking for documentation from inside the black sites. That’s likely to come later this year, he says. For now, the defense team is looking to preserve the architecture of the sites, which it contends can reveal information about his clients’ treatment. “If a person is in isolation,” Connell argues, “how that isolation is enforced is a relevant legal factor as to whether they’ve been illegally punished, and the building design is relevant to that.”
An earlier version of the military commissions insisted the government not mess with the shuttered black sites. In April 2009, Army Col. Stephen R. Henley, another military judge, ordered the government to “maintain the status quo” at any facility where the 9/11 defendants were held. (.PDF) But in 2010, the Obama administration voided the military commission for the five accused 9/11 conspirators in a failed bid to try them in civilian courts, only to start over with a different commission — one that may not be bound by Henley’s order. “Unlike a civilian court, the authority of a military commission ends when it is dissolved,” Connell clarifies.
If it seems strange that the black sites’ building design should be a factor for disclosure about the treatment that took place inside them, consider that there’s been practically no official disclosure about what did. The Senate intelligence committee recently completed a report into the CIA’s “enhanced interrogation program,” but for the time being, it remains a secret. The Justice Department declined to prosecute CIA officers involved in the torture program. Nearly everything else known about the treatment of detainees kept in black sites has been pieced together from references in declassified legal documents or from journalism.
The secrecy surrounding the commissions prevents Connell from saying if he has specific reason to fear that the black sites are at risk of destruction. (“I can neither confirm nor deny that,” he says.) But it’s not a hypothetical fear. The former chief of the CIA Counterterrorism Center destroyed nearly 100 videotapes documenting brutal interrogations.
Observers of the military commissions are reluctant to predict how Pohl will rule on the black-site preservation. But Daphne Eviatar, who monitors the commissions for Human Rights First (disclosure: a former journalistic colleague of mine), isn’t optimistic after seeing Pohl kill the audio feed in the courtroom last October when it seemed like one of the lawyers was about to use the word “torture.”
And even if Pohl orders the government to preserve evidence from the black sites doesn’t mean he’ll allow that information to be disclosed in open court. A victory for Connell isn’t the same as a victory for openness about torture. And if that’s the way Pohl rules, it may be a long time before the public has a better chance to learn even a little more about what the CIA torture program entailed.
“War crimes trials are often about a public presentation of what happened at some historical point,” Eviatar says. “Here, although what happened [before] 9/11 is the primary subject of the trial, how the U.S. responded to 9/11, through these five defendants, is also important, and the trial out to be able to bring out all of that.”
“If the government wants to go forward with a case seeking the death penalty against these men, it has to make the evidence which may still exist available to them,” Connell says. “If they will not make relevant evidence available, the law suggests the prosecution cannot go forward with the case. ” Unless Pohl decides otherwise.
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