Government Previews Defense of CIA Interrogation Program; Lawyers Receive Discovery of 'Depraved' Conduct

The prosecution team led by Brig. Gen. Mark Martins contends that the controversial CIA interrogation program was not “outrageous.”

Guantanamo Naval Base, Cuba – The prosecution team in the Sept. 11 case argued this week that the past abuse of the five defendants at CIA black sites does not meet the standard of “outrageous government conduct” that would lead to dismissal of the charges or other serious sanction against the government.

In doing so, prosecutor Clay Trivett previewed for the new judge the prosecution’s plan to portray the disbanded interrogation program as a legally ratified means to gather intelligence to prevent the "slaughter" of innocent people.

“It's important to note that when these particular enhanced interrogation techniques were being considered, that issue went up to the Department of Justice Office of Legal Counsel and they were asked to make a very specific determination on very specific enhanced interrogation techniques and whether or not they were lawful or whether they constituted torture,” Trivett argued.

Trivett contended that “there's certainly nothing outrageous from having the motivation of saving your own citizens after 3,200 had already been killed,” referring to the approximate number of deaths on Sept. 11, 2001, and from earlier attacks on the USS Cole in Yemen and U.S. embassies in Kenya and Tanzania.

“This was a high-level government decision to make a determination that we had to interrogate people under coercive conditions so we didn't get attacked again,” Trivett told Air Force Judge Shane Cohen, who is presiding over just his second pretrial session of the elaborate and prolonged effort to prosecute the five men accused of plotting 9/11. “I mean, that's the justification.  There's plenty of evidence to indicate that.  We can present you ample volumes of information as to why we did this.”

Trivett’s arguments came on the same day that the government turned over additional evidence related to the CIA program. The defense teams have received more than 15,000 pages of discovery about a program that they say subjected their clients to multiple years of torture in violation of U.S. and international law. The latest tranche included instant-messenger chats between personnel involved in the interrogations at CIA black sites.

In a meeting with reporters after Monday’s session, James Connell, the lead attorney for Ammar al Baluchi, said he could not discuss specific details of the chats. However, he referred to them as “depraved.”

The defense teams have not yet filed their anticipated motions to have the case dismissed for outrageous government conduct, largely because they are waiting for the discovery process to conclude. In Monday's arguments, Trivett pushed back against defense efforts to obtain State Department correspondence with other countries alluding to torture.

Defense lawyers hope to show that the U.S. criticized other governments for implementing torture techniques at the same time it was torturing the five defendants at CIA black sites with the same or similar techniques.

“Diplomatic correspondence assessing particular acts and circumstances will assist Mr. al Baluchi's defense by demonstrating that the so-called inherently coercive nature of his time in U.S. custody in fact constituted torture,” defense attorney Benjamin Farley, a member of Connell’s team, argued to Cohen.

Trivett countered that the State Department materials were not relevant and that the government should not have to produce them as part of the discovery process. He asked Cohen to set “the legal parameters of what an outrageous government conduct claim really is” before sending the government down discovery rabbit holes.

Trivett claimed defense teams are trying to avoid a trial through endless discovery requests.

“That's not a personal attack on them,” Trivett said. “That's a strategic, commonly accepted part of capital defense.”

He also reminded Cohen that the government will not challenge defense presentations of past abuse at CIA black sites when the defense teams give graphic descriptions to the judge in pretrial arguments or to the panel of military officers who will decide the case at trial. (The government does not plan on using statements from the black sites; they hope to introduce the statements the defendants made to FBI agents at Guantanamo, which prosecutors contend were voluntarily given.)

“We believe when it's being weighted it's like a feather to an anvil of what these people are responsible for,” Trivett said of the past abuse. “But in the end, they can argue it, and they have what they need to argue it.”

That argument was met with derision on the defense side of the courtroom given the ongoing discovery related to past interrogations. Pending before Cohen are three defense motions asking the judge to suppress statements their clients made to FBI agents in 2007 and 2008, after they arrived at Guantanamo Bay from the black sites. Defense lawyers claim that the severity of past torture at the black sites and CIA-FBI coordination on interrogations should prevent the government from using these so-called "clean" statements.

As of now, the plan for the three-week September session is to hear witness testimony on the motions to suppress, though Cohen is also weighing competing defense and prosecution trial-scheduling proposals that could alter those plans.

The defense teams have received helpful discovery since the suppression motions were first filed. Connell told reporters after court that he would have written parts of his suppression motion differently if he had received certain discovery earlier.

In court, Walter Ruiz, the lead attorney for Mustafa al Hawsawi, was particularly irked at Trivett’s suggestion that the defense teams were using the discovery process to delay the start of a trial. (Ruiz has repeatedly sought to sever his client from the other four defendants, in part to move al Hawsawi’s case faster.) He said the defense teams should not have to file motions and question witnesses and then afterwards receive relevant discovery.

“When we stand up here and we tell you we don't have what we need, we think we need additional information, there are reasons for that,” Ruiz told Cohen. “It is after careful, reasoned analysis, and it is informed by the experience that we have had in this commission with the discovery process and with the process of trying to extract this information from the government.”

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.