An Army judge has ruled that U.S. military defense lawyers cannot learn what torture techniques CIA agents used on accused 9/11 plotter Ramzi bin al Shibh prior to being moved to Guantánamo.
Bin al Shibh, 37, is one of five men charged in a complex death penalty prosecution by military commission currently under review by the Obama administration. He allegedly helped organize the Hamburg, Germany, cell of the Sept. 11, 2001, hijackers before the suicide mission that killed 2,974 people in New York, the Pentagon and Pennsylvania.
More after the jump:
Army Col. Stephen Henley, the military judge on the case, has scheduled a competency hearing for mid-September. Meantime, the judge ruled on Aug. 6 that "evidence of specific techniques employed by various governmental agencies to interrogate the accused is . . . not essential to a fair resolution of the incompetence determination hearing in this case.''
...In this instance, Lachelier said her defense team didn't seek to rebut the government's case but wanted to know the details of his interrogation in order to let medical staff assess his competency. "We're not trying to point a finger at an institution,'' she said. "We're just trying to rule in or out certain diagnoses."
The first issue is whether the accused have the mental fitness to stand trial after being subjected to torture. At a hearing last month, bin al Shibh’s lawyer had her microphone cut off when she went into detail about how her client had been deprived of sleep. Even if the defense cannot prove that torture caused mental damage rendering their clients unfit, they will still attempt to establish that the confessions given cannot be admissable since they were given under those circumstances.
The allowed use of evidence coerced through enhanced interrogation techniques undermines the integrity of the proceedings.
These proceedings, in principle and in practice, are completely inconsistent with the fundamental principles of American justice and with U.S. treaty obligations. They are subject to political influence, and rely on confessions or witness statements extracted by torture and on secret evidence that a defendant cannot see or rebut. To date, the experience litigating the 9/11 cases in the commissions have demonstrated them to be unsalvageable.
And these are capital cases -- supposedly deserving of the highest standard of judicial care. Yet the distinguishing hallmark of the commissions' approach has been the appalling refusal to afford the accused the essential tools recognized by both the United States Supreme Court and the American Bar Association as necessary to the preparation of a capital cases defense. Some examples:
- Motion to give the defendants -- held without counsel for over five years -- time to meet with their lawyers before the hearings began? Denied.
- Motion for confidential services of experts, a commonplace request in capital cases? Denied.
- Motion for a capital case investigator, routinely afforded any capital defendant in civilian courts? Denied. (We pointed out that the last military death penalty was reversed on appeal for failure to appoint such an investigator. Didn’t matter.)
- Motion for a secure phone line so the Guantánamo defendants could speak with their lawyers at a classified facility in the states? Denied.
- Accurate simultaneous translations in court? Denied.
- Oral motion for a legal pad by a defendant who is representing himself, so he can prepare written motions? Denied because "you have to make that motion in writing."
If the prosecutor is allowed to use evidence obtained under torture, it will not sit well with the international community where the U.S. investigation of the crimes which occurred on 9/11/2001 has been brought into question. On its 7th anniversary of those events, a member of the European Parliament, Giulietto Chiesa, released a documentary called ZERO which examined the evidence supporting the narrative portrayed in the Western media and published by the 9/11 commission.