Prosecutors Ask Judge to Wipe From Record Information Gained From Torture

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WASHINGTON — Military prosecutors have asked to wipe from the record information gleaned from the torture of a detainee now held at Guantánamo Bay, reversing their earlier position that the information could be used in pretrial proceedings against the man.

By law, prosecutors in a military commission trial are forbidden to submit evidence derived from torture. But in May, the judge, Col. Lanny J. Acosta Jr., ruled that while juries could not see that type of evidence, judges could consider it in determining pretrial matters.

Biden administration lawyers were troubled by the decision because they would be expected to defend the use of such information before appeals courts. The ruling, the first known instance in which a military judge permitted prosecutors to use information gained through torture, also carries larger implications for all cases at Guantánamo.

The chief prosecutor at Guantánamo for a decade, Brig. Gen. Mark S. Martins, had cited a statement obtained through torture, clashing with senior administration officials who questioned his authority to do so. The dispute played a part in his unexpected decision to retire from the Army 15 months early, on Sept. 30.

The case in question involves Abd al-Rahim al-Nashiri, a Saudi man accused of orchestrating Al Qaeda’s bombing of the U.S. Navy destroyer Cole off Yemen in 2000, which killed 17 sailors.

At issue has been an effort by Mr. Nashiri’s lawyers to learn more about the reasons for a U.S. drone strike in Syria in 2015 that killed another man suspected of being a Qaeda bomber, Mohsen al-Fadhli. Pursing a possible defense argument, they have sought to determine whether the United States has already killed men it considered to be the masterminds of the Cole bombing.

Prosecutors asked the judge to end that line of inquiry, pointing to a classified cable that reported that Mr. Nashiri had told C.I.A. agents as he was being interrogated at a black site in Afghanistan that Mr. Fadhli had had no involvement.

Mr. Nashiri’s lawyers protested the use of the C.I.A. information and added that the prisoner had made the disclosure as interrogators used a broomstick in a particularly cruel way, causing him to cry out.

The judge has yet to decide the overarching question of whether defense lawyers can continue to seek classified information about the drone attack. But he sided with the prosecutors, ruling that he could consider what Mr. Nashiri had said in deciding the matter. In response, defense lawyers filed an emergency appeal with a higher court, seeking a reversal. Government lawyers have yet to respond.

But Friday, prosecutors asked the judge, Colonel Acosta, to remove from the record information about the C.I.A. interrogation. Still, they asked him to retain the essence of his ruling, which found that there were occasions when a judge could consider such information while recognizing that “statements obtained through torture are necessarily of highly suspect reliability.”

Doing so, they wrote in a six-page filing, “can serve judicial economy” and “advance this case toward trial.” It was signed by General Martins and two other prosecutors.

Defense lawyers called the move insufficient and said they would continue to seek a reversal.

“Removing the sentences citing evidence obtained by torture, but not their motion saying the judge is free to use torture pretrial, or the judge’s ruling saying that it is lawful to do so, accomplishes little,” said Capt. Brian L. Mizer of the Navy, Mr. Nashiri’s lead military defense lawyer.

Mr. Nashiri, 56, has been held since 2002, spending four years in C.I.A. custody. His trial had been expected to start in February 2022, but that timetable is in doubt because the coronavirus pandemic has paralyzed progress in the pretrial proceedings at Guantánamo.

The judge has scheduled a two-week hearing in the case starting Sept. 20. The court last convened in January 2020.

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