The military judge in the USS Cole bombing case on Friday rejected the confessions made by the Saudi defendant to federal agents at Guantánamo Bay after years of secret detention by the CIA, declaring the statements to be false. of torture.
The decision deprives prosecutors of a key piece of evidence against Abd al-Rahim al-Nashiri, 58, in Guantánamo Bay’s longest-running death penalty case. He is accused of orchestrating the Al Qaeda bombing of a warship on October 12, 2000, in Yemen’s Aden Harbor that killed 17 US sailors.
“The inclusion of such evidence is not without cost to society,” the judge, Col. Lanny J. Acosta Jr., wrote a 50-page decision. “However, allowing the admission of evidence obtained or obtained from torture by the same government that seeks to prosecute and execute defendants may have greater costs to society.”
The question of whether the confessions are admissible is seen as a key test in a more than decade-long joint effort by the Justice and Defense Departments to pursue the accused architects of Qaeda attacks. The special court at Guantánamo was designed to combat the impact of earlier, brutal CIA interrogations on war crimes trials, including death penalty cases.
Similar efforts to suppress confessions tainted by torture were made in the case against Khalid Shaikh Mohammed and four other prisoners accused of complicity in the terrorist attacks of Sept. 11, 2001. Mr. Nashiri, like Mr. Mohammed, was waterboarded and subjected to other forms of torture in 2002 by CIA interrogators, including contract psychologists, through a program of “enhanced interrogation.”
Testimony showed that psychologists participated in a year-long program that, even after the brutal interrogation methods ended, used isolation, sleep deprivation, punishment for disobedience and implied threats of further violence to prisoners remain cooperative and talk to interrogators.
Prosecutors consider the confessions of Mr. Nashiri by federal and Navy criminal agents in the Guantánamo investigation in early 2007, four months after his transfer from a CIA prison, was one of the best pieces of evidence against him.
But prosecutors also requested, and received permission from the judge, to use a transcript from other questions in Mr. Nashiri.
In March 2007, he went before a military panel investigating his status as an enemy combatant and was allowed to answer allegations involving his role in Al Qaeda plots. He told military officials that he confessed after being tortured by the CIA, but then recanted.
At the administrative hearing, Mr. Nashiri denied being a member of Al Qaeda or involvement in the plots but admitted that he knew Osama bin Laden and received funds from him for an unfulfilled business project. shipping to the Persian Gulf.
Experts in human rights and international law eagerly await the decision as a test of the US government’s theory that federal agents can legally obtain confessions, untainted by past abuse, if the so-called clean groups ask the accused without threats or violence and repeatedly told. former CIA prisoners whose participation was voluntary.
But the testimony in the pretrial hearings showed that after his arrest in 2002, Mr. Nashiri was subjected to both authorized and unauthorized physical and emotional torture in an odyssey through the CIA secret prison network – from Thailand to Poland to Afghanistan and then to Guantánamo Bay – which included waterboarding, confinement within a cramped box, rectal abuse and tortured with a revving drill next to his blindfolded head to force him to answer interrogators’ questions about future and suspected Qaeda plots.
By the time he was questioned by federal agents in January 2007, lawyers and experts argued, the inmate had been trained to answer his interrogators’ questions.
Colonel Acosta, who is retiring from the Army next month, agrees.
Mr. Nashiri had no reason to believe “that his circumstances had changed significantly when he was marched in to be interviewed by the latest round of US personnel in late January 2007,” Colonel Acosta said. “Any resistance the defendant might have been inclined to put up when asked to incriminate himself was deliberately and literally beaten out of him years ago.”
“If ever there was a case where the circumstances of a defendant’s prior statements affected his ability to make a later voluntary statement, this is one case. Even if the 2007 statements were not got to torture or cruel, inhuman, and degrading treatment, they from this.”
Rear Adm. Aaron C. Rugh, the chief prosecutor, did not respond to a question about whether his team would appeal the decision.
“It is not appropriate to comment on the case while the litigation is ongoing,” the Pentagon’s military commissions office said in a statement. “The prosecution in this case remains committed to seeking justice for the families of the victims of the USS Cole.”
With a new judge expected later this year, prosecutors could ask the Guantánamo court again or raise the issue with a Pentagon appeals panel, the Court of Military Commissions Review.
Separately, the panel considered a challenge to Colonel Acosta’s status as a judge in the USS Cole case. Defense attorneys asked him to resign earlier this year when he revealed he was applying for a post-retirement, civilian job as an Air Force Judiciary clerk. Colonel Acosta refused, saying that he disclosed his application the day after he applied for the job, and therefore had no hidden bias in favor of the government.
Katie Carmon, one of the lawyers of Mr. Nashiri, said there are no immediate plans to withdraw their challenge and called Colonel Acosta’s decision to stop the interrogations in 2007 “morally and legally correct.”
“The government that tortured Mr. al-Nashiri has never been held accountable,” he said. “But today’s decision is a small step forward because the government lost a critical part of its prosecution.”