Military judge rules on CIA torture program in September 11 case
A defense lawyer on Monday asked a military judge to dismiss a September 11 conspiracy charge against a Saudi prisoner who was tortured in CIA custody. He described the secretive overseas prison network where the man was being held as part of a “vast criminal international enterprise” that trafficked as torture.
Defense attorneys in the case have been saying for years that the case should be dismissed based on a rarely successful legal doctrine involving “outrageous government behavior.”
On Monday, Walter Ruiz became the first defense attorney to make the argument to a military judge on behalf of Mustafa al-Hawsawi, who is accused of helping the September 11 hijackers with money transfers and travel arrangements.
The interrogation and detention program being carried out against his client “so shocks the conscience”, he said, that Mr Hawsawi should be dropped from the conspiracy case.
In a nearly daylong presentation, Mr. Ruiz used government documents to argue that the detainee was sexually abused in the first month of his detention, interrogated without consent by CIA interrogators, deprived of sleep and kept isolated in prison since 2003. dark dungeon-like conditions.
To build their cases against former CIA detainees, prosecutors in 2007 had so-called clean teams of federal agents re-interrogate suspects at Guantánamo Bay, without using or threatening violence.
But “no matter how many cleaners they bring to this court, they can't clean it up,” Mr. Ruiz said. “It smells and smells of coercion, torture, cruelty and depravity.”
The CIA's Black Site Program was established by President George W. Bush's administration in the aftermath of the September 11, 2001 attacks and was halted by President Barack Obama. About a hundred suspects were held incommunicado and without charge in CIA prisons in Afghanistan, Thailand, Poland and elsewhere, beyond the reach of U.S. courts.
To create and maintain the program, Mr. Ruiz said, the United States spent hundreds of millions of dollars paying foreign countries to let them establish CIA facilities abroad, transported prisoners around the world and two psychologists hired to run it. He called it “a vast international criminal enterprise that operates completely outside the bounds of domestic and international law.”
The lead prosecutor, Clayton G. Trivett Jr., defended the program, revealing that the FBI collaborated with the CIA on the black sites, in response to a wounded and fearful nation at war “while the towers were still smoldering.”
On September 12, 2001, Mr. Trivett said, Mr. Bush concluded that the United States could “no longer afford” to continue its “simple approach to law enforcement of arrest, detain, charge and prosecute.”
Mr. Trivett said it made sense for the FBI to coordinate its investigation with the CIA, especially since a lack of intelligence coordination was blamed for failing to prevent the September 11 attacks. “It would be outrageous if that weren't the case,” he said.
The timing of the plea suggests that Col. Matthew N. McCall, the fourth judge to preside over the case, will be able to rule on the issue before he retires later this year. The judge has a busy agenda this month and later this year with testimony about the CIA program and the FBI's role in it.
To make his case for the open court hearing, Mr. Ruiz devoted hours to showing classified documents to the judge — but not to the public. He accused the U.S. intelligence community of overclassifying information to hide “dirty secrets.”
One of those, he said, “would not necessarily implode the national security of the United States. But it would certainly be embarrassing. And ugly. And shocking.”
Mr. Ruiz argued that despite the Bush administration's efforts to “legalize” torture through Justice Department memos authorizing waterboarding and other “enhanced interrogation techniques,” the dossier showed that Mr. Hawsawi's captors ” exceeded, ignored and violated even these specific guidelines.”
The CIA, for example, has never acknowledged Mr. Hawsawi's waterboarding. But in April 2003, his second month in custody, Mr. Hawsawi, according to a Senate investigation, “cried for God” while being subjected to a waterboarding technique in a particularly brutal CIA prison in Afghanistan code-named Cobalt.
Some violations were “outright revenge or retaliation,” Ruiz said. Others were the result of a lack of training and guidance, or what Dr. James E. Mitchell, the psychologist who waterboarded prisoners for the CIA, testified years ago as “abuse.”
Mr. Ruiz urged the judge to reject the prosecution's argument that the government would rely at trial on evidence gathered by the FBI as part of a criminal investigation, rather than on intelligence gathering by the CIA, which interrogated the September 11 suspects. 2002 to 2006, before their transfer to Guantanamo Bay.
Years of testimony, he said, showed a “symbiotic relationship between the CIA and the FBI, with no clear dividing line.”
The presentation illustrated the control that intelligence services have over what the public can know.
Mr. Trivett, a prosecutor, asked the judge to ban Mr. Ruiz from publicly showing the court a newspaper article as well as a briefing publicly posted on the U.S. Supreme Court's website. Colonel McCall, the judge, agreed. “I have a duty to protect what I have been told is classified information,” he said.
Mr Hawsawi and the three other defendants were absent from the courtroom during the presentation.
Matthew Engle, representing defendant Walid bin Attash, said there were tensions at the prison due to changing practices or policies that “revived security measures that had not existed for more than a decade.”
The Pentagon recently appointed the 23rd commander of the two-decade-old prison operation, an Army colonel who had commanded a battalion of military police at the prison from 2018 to 2020.