The 9/11 trial judge has ruled that he and the prosecution did nothing wrong in authorizing the destruction of a former CIA “Black Site” prison without advance notice to defense attorneys.
Separately, Army Col. James L. Pohl, the judge, also postponed plans to hold a pretrial, mini-hearing meant to tackle two key questions hanging over the case: When did the war on terror begin, and for how long does torture taint confessions?
Neither ruling was available Saturday on the Pentagon war court website, which posts court filings three or more weeks later after intelligence analysts examine the documents and decide what, if anything, the public cannot see.
But three attorneys who saw the Black Site ruling said Pohl rejected a request that he step down, remove prosecutors or provide other remedies for an episode in which prosecutors secretly and unilaterally obtained permission from the judge to “decommission” a former CIA prison without notice to defense attorneys.
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Court filings and in-court presentations showed the judge, through the prosecution, authorized the spy agency to dismantle the overseas site — in a nation that has never been disclosed — at a time when Pohl publicly had a protection order on any surviving remnants of the George W. Bush administration era overseas prison network. However, prosecutors using their national security powers got behind-the-scenes, unilateral permission from the judge to give the defense attorneys photographs and some sort of 3D diagram as a substitute for the real thing.
The destroyed site was a rare remaining outpost in the spy agency’s worldwide network of secret prisons.
There, from 2002 to 2006, agents kept their captives naked, or in diapers, waterboarded some, rectally abused others, and used cramped confinement boxes and hot and cold temperatures to break the men in their pursuit of al-Qaida secrets — techniques that the Senate Torture Report mostly described as ineffective.
The judge wrote that defense attorneys failed to show that “the physical evidence is of such central importance to an issue that is essential to a fair trial, or that there is no adequate substitute for the physical evidence.”
Pohl issued the 16-page ruling Friday, eight hours before the government shut down.
Defense lawyers argued that, with advanced notice of a plan to destroy the site, they would have asked a federal judge to stop the destruction. Pohl denied their request to call witnesses to demonstrate the quality of evidence that was lost, and explain to the judge that defense lawyers have an ethical obligation to investigate at the site itself — a form of pretrial preparation prosecutors say is forbidden in the death-penalty case.
In another order, dated Thursday, Pohl ruled that lawyers for an accused Sept. 11 attack plotter, Ammar al Baluchi, need to first, separately, challenge his FBI interrogations before holding a mini-hearing on the question of whether the court has “personal jurisdiction” to try him at Guantánamo.
Baluchi, his uncle Khalid Sheik Mohammed and three other former CIA captive are accused of setting up the Sept. 11, 2001, terror attacks by plane hijackings that killed 2,976 people at New York’s World Trade Center, the Pentagon and in a Pennsylvania field.
They got to Guantánamo in 2006, and in early 2007 were interrogated by FBI and Naval Criminal Investigative Service agents, members of a so-called clean team set up to question them separately from their brutal treatment in CIA custody. Lawyers for all five men argue that even the statements to the FBI are tainted by torture, the product of a program designed to deprive them of free will, and are inadmissible at trial.
Baluchi’s attorney, Jay Connell, said Saturday that to go forward with the “personal jurisdiction” hearing now, defense lawyers would need to agree that Pohl can decide the question of when hostilities began first, separate from the question of whether the FBI interrogations can be used at trial.
That’s what attorneys for another alleged plotter, Mustafa al Hawsawi, did last year in a narrow challenge to the case, which argued that the war had not begun when Hawsawi allegedly helped some of the 9/11 hijackers with travel and banking arrangements to reach the United States. They also argue that Hawsawi, a Saudi, wasn’t a member of al-Qaida, an apparent prerequisite for trial by military commission.
Baluchi’s lawyers wanted to call dozens of witnesses, from CIA and FBI agents to former military leaders, in a multipronged challenge.
“The judge said that all further litigation on personal jurisdiction is deferred indefinitely until either we file a motion to suppress or decline to challenge al-Baluchi’s statements,” Connell said Saturday.
Connell had previously predicted it would take a year to bring down and call witnesses related to those preliminary issues.