One of the alleged Sept. 11 plotters suffered a head injury in CIA custody that caused memory loss and delusions, a Pentagon defense lawyer said in court Wednesday at a pre-trial hearing focusing on the U.N. Convention Against Torture.
The disclosure was the first public allegation of injury to the accused, Ammar al Baluchi, 36, the nephew of the alleged 9/11 mastermind and one of five captives facing trial — and the death penalty — perhaps late next year as conspirators in the Sept. 11, 2001 attacks that killed nearly 3,000 people.
Attorney James Connell invoked two of Baluchi’s unclassified Guantánamo medical records in a bid to argue that not everything the captives say about their treatment at the CIA’s overseas prison network from 2002 to 2006 constitutes national security secrets.
At issue is the 9/11 defense attorneys’ challenge of a military commissions protective order that, the defenders say, oblige the attorneys to make sure the prisoners don’t tell foreign courts or human rights groups their memories of what the CIA did to them during the years before they were brought here in 2006.
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It is widely know from a declassified investigative report that agents waterboarded Baluchi’s uncle, Khalid Sheik Mohammed, 183 times in March 2003. Less is known about what agents did to the other four defendants, and the lawyers argue that the U.S. government is violating the Convention Against Torture by defining the captives’ accounts of their treatment as classified.
“What is clear is that there is a right to complain,” said Connell. He echoed other defense lawyers’ arguments that, if the judge, Army Col. James Pohl, can’t authorize an outside torture complaint, he should dismiss the Sept. 11 case.
CIA spokesman Ned Price wouldn't comment on whether or how Baluchi was harmed in CIA custody “given the pending military commission proceedings.”
Connell invoked two medical reports from September and October in 2006 that report “suspected detainee maltreatment” dating back three or four years prior, one signed by a psychiatrist identified as Dr. 1 and another by a Navy medic called HM-6.
Baluchi, according to the psychiatrist’s notation, “reported auditory and visual hallucinations for 1-2 weeks with slow resolution reporting headaches/pain and intermediate memory problems.”
During a recess, Connell said he was unable to say anything else beyond what he was permitted to say inside the maximum security courtroom about the head injury his client suffered in CIA custody. The only possible public information about the treatment his client suffered, Connell said, was a scene showing a CIA prisoner named Ammar being beaten in the docudrama “ Zero Dark Thirty.”
Connell refused to respond to a direct question of whether Baluchi was subjected to an “Enhanced Interrogation Technique” called “Walling” that was approved for CIA use at the time of Baluchi’s capture in April 2003
A CIA inspector general’s report describing how the technique was used said an interrogator “quickly and firmly pushed” a detainee “into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled hood or towel to help prevent whiplash.”
But the development suggested that the Sept. 11 defendants may be able to someday say in public what, if any, damage the interrogation techniques caused, but not specify the technique. The Justice Department approved the techniques for use between 2002 and 2005 and they included, according to public disclosures, putting a captive in a box with “a harmless insect,” slapping, diapering, shaving, hooding, isolating, sleep depriving and forcing captives into stress positions.
In court, Connell held up a sealed envelope that he said contained Baluchi’s handwritten account of his CIA treatment to the U.N. Special Rapporteur on Torture. The lawyer said he hadn’t read it, wouldn’t vouch for whether it contradicted or confirmed any classified information the lawyer had seen and so should be able to send it to the Rapporteur as Baluchi’s unclassified memories.
Case prosecutor Clay Trivett argued later, however, that the United States government has absolute control of U.S. captive’s CIA memories because where they were held and what was done to them is classified as “sources and methods” used by the CIA in the now defunct Rendition, Detention and Interrogation program.
Connell made the disclosure from a secret annex to his Convention on Torture legal motion after a closed session Tuesday at the war court. Judge Pohl announced Wednesday that no national security secrets were at risk and could challenge U.S. classification rules in open court.
He told the judge that nothing came of the medical professionals’ 2006 “suspected detainee maltreatment” report. Trivett a day earlier argued that the detainees need not go elsewhere to make a Convention on Torture complaint, that the U.S. military was bound to investigate any abuse claim.
While the other four accused Sept. 11 conspirators attended court, Baluchi wasn’t there. He voluntarily waived his attendance, said a prison camp lawyer, Navy Cmdr George Massucco, who told the judge he stopped by Baluchi’s cell at the secret Camp 7 complex at 5:20 a.m.
Prosecutors don’t concede anyone was tortured and argue that because the CIA program that interrogated them overseas is classified, information about the program can only be heard in closed sessions of the Guantánamo war court.
Pakistani forces captured Baluchi in April 2003 in Karachi, Pakistan, along with co-defendant Walid bin Attash “and four other suspected al-Qaida members,” according to his leaked Guantánamo prison assessment. He got to Guantánamo more than three years later, and in December 2006 was assessed to be in “good health.”
The 9/11 case is “not about torture,” Trivett told the judge Tuesday. “It’s about the summary execution of 2,976 people.”
Earlier Wednesday, the Navy defense lawyer for another man charged in the case sought and failed to stop the proceedings. Navy Lt. Cmdr Kevin Bogucki told the judge that defendant Ramzi bin al Shibh had not gotten a good night’s sleep because of disturbances at his secret prison overnight.
Bin al Shibh, 41, has complained for months that the military has systematically caused his isolation cell to vibrate and blasted noise inside at night. Over the summer, Pohl issued an order to the military to cut it out, if it was happening.
Bogucki asked the judge additionally for a court order to inspect the control room at Camp 7, Guantánamo’s secret prison for CIA captives, and to interview some of the guards. The judge didn’t issue the order and instead told the lawyer to file a motion.
Eight Sept. 11 victims are at Guantánamo this week to watch the proceedings, under escort by a Pentagon employee in a New York Fire Department uniform. None so far have agreed to tell their stories and so far the Pentagon has withheld their identities.