Defense lawyers at the Guantánamo war court are turning theadage that art imitates life on its head with a legal motion thatargues the makers of Zero Dark Thirtyknow more about what the CIA did to an accused Sept. 11 conspiratorthan the defendant’s lawyers do.
In a 418-page legal filing, lawyers for Ammar al Baluchi seekgovernment documents on how CIA interrogators and other U.S.officials helped director Kathryn Bigelow and screenwriter MarkBoal prepare the first 20 minutes of the film. In it, interrogatorswaterboard, strip naked and string up on a rope a man named “Ammar”who is described as the nephew of the 9/11 mastermind who helpedfinance the Sept. 11 hijackers.
Prosecutors oppose the effort as irrelevant to the defense ofBaluchi — nephew of alleged 9/11 architect Khalid Sheik Mohammed —who is accused of helping finance the hijackers in a case thatseeks his execution.
At issue in the latest transparency challenge at the war courtis what CIA agents told Bigelow and Boal as they were making the2012 docudrama on the U.S. raid that killed Osama bin Laden inAbbottabad, Pakistan.
Emails and documents surfaced by Judicial Watch and Gawker inFreedom of Information filings show an agency and Pentagon eager toparticipate in the effort — even providing the filmmakers four CIAofficers to brief them in the summer of 2011.
“Nothing to comment,” screenwriter Boal said in a short email tothe Miami Herald on Friday. “But good luck with the piece.”
Baluchi’s attorneys Jay Connell and Air Force Lt. Col. SterlingThomas, both on the case because they have top-secret securityclearances, want the war court judge to order the government tofurnish them with uncensored correspondence between the filmmakersand U.S. officials, including interrogators’ names. They want toread an unredacted version of an internal CIA memo that talks about“an interrogation of a character who is modeled after Ammar alBaluchi” — in which the agency sought changes.
“The United States has provided more information to thefilmmakers of Zero Dark Thirty aboutMr. al Baluchi’s treatment in CIA custody than it has to hisdefense counsel,” they argue. Although those lawyers months agosigned an agreement to safeguard national security secrets, “theprosecution has provided no information about Mr. al Baluchi’srendition, detention, and interrogation.”
The unusual detour through a Hollywood production is just thelatest effort by attorneys to shine a light on what happened to thealleged 9/11 conspirators before they got to Guantánamo in 2006.The CIA has acknowledged that it waterboarded Mohammed 183 times,among other interrogation tactics portrayed in the movie. Butnothing has ever surfaced on what was done to his nephew, who sitsfour rows behind him at the war court as a co-defendant in the casealleging five men conspired to direct, train and fund the hijackerswho killed nearly 3,000 people on Sept. 11, 2001.
Prosecutors have consistently argued that the CIA treatment isnot relevant at the trial. The war court forbids from trial the useof information gained through tortured interrogations.
Defense lawyers argue they need to know what the CIA did totheir clients as they carve out a defense for a capital murdertrial like no other.
First, despite prosecution pledges not to bring to court anyinformation gained through torture, the defense lawyers don’t trustthem. They want to be able to analyze evidence supposedly producedby so-called FBI clean teams years after the brutal interrogationsportrayed in the Hollywood movie. Plus, they argue thatmistreatment is a mitigating factor that should ultimately sparetheir clients the death penalty.
And that starts with transparency, if not for the public thenfor the lawyers.
The defense lawyers’ July 31 Zero DarkThirty filing was released Aug. 27 by the Pentagon withabout 100 pages blacked out.
The prosecutors’ objections, filed Aug. 23, were still underseal Friday while intelligence agents scrubbed it of informationthe public is not allowed to see.
Attorneys for Baluchi, 36, also attached a DVD of the first 25minutes of the film to the court filing.
Connell said he wants to screen it inside the maximum-securitycourt for the judge, Army Col. James L. Pohl, when he gets to arguein court for the communications between the government andfilmmakers.
In addition to being waterboarded, the Ammar character in themovie is also forced to wear a dog collar and is stuffed in acoffin-like box. Declassified and leaked abuse investigations haveshown that U.S. agents used those so-called “enhanced interrogationtechniques” to break the will of CIA prisoners after the 9/11attacks. But none have ever been specifically tied to Baluchi.