Lawyers for some of the alleged 9/11 plotters asked the trial judge Wednesday to get them the captives’ full medical records from their time in CIA custody, arguing they need the details to avert their military execution.
In one instance, a defense attorney for a Saudi captive due to undergo rectal reconstruction surgery later this week said prosecution summaries of CIA medical care make no mention of Saudi Mustafa al Hawsawi’s rectal damage. A declassified portion of the so-called Senate Torture Report cites “CIA records” that indicate Hawsawi was “diagnosed with chronic hemorrhoids, an anal fissure, and prolapse.”
Hawsawi, 48, is accused of helping the Sept. 11 hijackers with money, Western clothing, traveler’s checks and credit cards. He was captured in Pakistan in March 2003 with alleged plot mastermind Khalid Sheik Mohammed and “from all indications he was a healthy young male” when he disappeared into the CIA’s black sites, said his lawyer, Army Lt. Col. Jennifer Williams.
He emerged three years later with Hepatitis-C, cervical damage, the prolapse, anal fissure, hearing loss, a gastrointestinal issue and has peed blood since July 2014, she said. None of it is mentioned in summaries of medical records prosecutors furnished them in trial preparation, she said.
Defense attorneys say they need the medical records to demonstrate that the United States has lost the moral authority to execute the five men accused of orchestrating the worst terror attack in U.S. history — the Sept. 11, 2001, hijackings that killed 2,976 people in New York, Pennsylvania and at the Pentagon. They could argue that to the judge before trial, to get the death-penalty dropped from the case, or to the jury, if they are convicted. Or both.
Case prosecutor Robert Swann told the judge, Army Col. James L. Pohl, that Sept. 11 case prosecutors provided either Hawsawi’s lawyers or the judge every one of Hawsawi’s CIA medical records that they could find: A total of 191 pages.
Under the war court’s classified information protection process, prosecutors can withhold or summarize certain pretrial discovery but have to demonstrate to the judge that they are providing them with an adequate substitute that doesn’t disadvantage their ability to defend their clients.
Swann said that Pohl signed off on the summaries in April 2014, and they were identical to summaries approved by Bush-era war court judge in an earlier, aborted 2008 prosecution. Pohl added that he revisited the summaries, documents in light of release of the Senate Torture Report in December 2014 — and handed over additional material to Hawsawi’s lawyers.
“We have completed our discovery with respect to the medical records of Mr. Hawsawi that were in the CIA’s holdings,” Swann said.
In fact, the chief prosecutor, Army Brig. Gen. Mark Martins, told reporters this week that his teams had provided all applicable pretrial discovery to the 9/11 defense teams or judge for approval of substitutions by Sept. 30. The general called it a “major milestone.”
The judge has set no trial start date. Now is the phase of preparation for the trial when the judge examines the classified information for adequacy — and defense lawyers argue for information they believe is missing from the case, which is what happened Wednesday with the legal sparring over CIA medical records.
Swann expressed impatience with the focus of the hearing on torture. Pohl stopped him, on an objection from a defense lawyer, from describing in some detail the dead of Sept. 11 as he argued that the accused terrorists had received sufficient medical records.
Williams argued in court that Hawsawi investigators have learned more about Hawsawi’s health care — or lack thereof — from declassified CIA cables released by the spy agency through the Freedom of Information Act.
A lawyer for Mohammed’s nephew, also accused of helping the Sept. 11 hijackers with arrangements, also called the documents released to Ammar al Baluchi’s team inadequate. Alka Pradhan said one record showed that during CIA interrogation the now 39-year-old Baluchi was ordered to stand for 82 hours, and was given water and Ensure.
Missing from the records, she said, was who examined Baluchi during the three days standing, when he got the fluids, who administered them, if he was nude — and how — in a program that the Senate report said used a quasi-medical technique called “rectal rehydration.”
“We want the full medical records from CIA custody so we can piece together how the CIA tortured these men,” she said, calling the prosecution summaries as a “whitewash.”