Appeals Panel Overturns Army Judge’s Ruling on Torture

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Politics|Appeals Panel Overturns Army Judge’s Ruling connected Torture

The determination connected a lawsuit astatine the Guantánamo warfare tribunal did not resoluteness the broader contented of whether prosecutors tin usage grounds obtained done torture.

Camp Justice astatine  Guantánamo Bay houses what is fundamentally   a commuter court. Nearly everyone but the captive  travels determination   from the Washington, D.C. country  for proceedings. 
Credit...Erin Schaff/The New York Times

Carol Rosenberg

Sept. 20, 2021Updated 9:22 p.m. ET

GUANTÁNAMO BAY, Cuba — A Pentagon appeals sheet connected Monday threw retired a ruling by an Army justice who recovered that grounds obtained during the torture of a suspect could beryllium considered successful determining pretrial matters successful a death-penalty lawsuit astatine Guantánamo Bay.

“The contented of admissibility of specified grounds is not ripe oregon acceptable for judicial review,” the Court of Military Commission Review ruled successful a six-page decision that fundamentally near to different time the overarching contented of whether prosecutors tin successful immoderate instances usage grounds obtained done the torture of a prisoner.

Lawyers brought the entreaty connected behalf of Abd al-Rahim al-Nashiri, a Saudi antheral accused of plotting Al Qaeda’s bombing of the U.S. Navy destroyer Cole disconnected Yemen successful 2000, which killed 17 U.S. sailors. Mr. Nashiri was waterboarded by psychologists moving for the C.I.A., and his proceedings has been mired successful pretrial proceedings for a decennary arsenic the tribunal that was acceptable up aft the attacks of Sept. 11, 2001, tries to woody with the bequest of the torture.

The Pentagon appeals sheet issued the determination connected Monday, the eve of the archetypal pretrial hearings successful the lawsuit since January 2020 pursuing a lengthy closure of the tribunal caused by the coronavirus pandemic. A subject committee astatine Guantánamo is fundamentally a commuter court, with astir everybody who takes portion successful the proceedings, speech from the prisoner, arriving connected a charter formation from the Washington, D.C., area.

At contented successful the entreaty had been a determination by prosecutors earlier this twelvemonth to see successful a classified filing thing Mr. Nashiri told a C.I.A. interrogator during a peculiarly brutal interrogation successful 2002. His lawyers were seeking accusation astir a drone onslaught successful Syria successful 2015 that killed Mohsen al-Fadhli, different Qaeda figure, arsenic they explored a mentation that the United States had already killed plotters of the Cole onslaught who were much elder and much culpable. Prosecutors asked the justice to extremity that enactment of inquiry, pointing to a classified cablegram that said Mr. Nashiri had told C.I.A. agents arsenic helium was being interrogated astatine a concealed situation successful Afghanistan that Mr. Fadhli had not been involved.


Credit...Dimitri Messinis/Associated Press

Defense lawyers asked the proceedings justice to cull the filing, saying prosecutors successful a subject committee proceedings are forbidden to taxable grounds derived from torture. Rather than cull the evidence, the judge, Col. Lanny J. Acosta Jr., ruled connected May 18 that portion juries could not spot that benignant of evidence, prosecutors whitethorn invoke specified accusation for precise constrictive usage connected matters that are a judge’s alternatively than a jury’s domain.

The ruling stirred controversy. David Luban, a prof of instrumentality astatine Georgetown University, said helium recovered it troubling due to the fact that “torture grounds sneaks successful done the backmost door.” Mr. Nashiri’s lawyers accused the subject justice of “moral blindness.”

The ruling besides caught the attraction of Biden medication lawyers, who were unhappy with the determination by the long-serving main warfare crimes prosecutor, Brig. Gen. Mark S. Martins of the Army, to mention a connection obtained done torture. A quality implicit the maneuver figured successful the general’s unexpected determination to discontinue from the Army 15 months early. He leaves work connected Sept. 30.

After helium enactment successful for retirement, General Martins asked Colonel Acosta to hitch from the grounds the accusation from the C.I.A. situation portion retaining the overarching determination that judges person the authorization to measure accusation gleaned from torture. Colonel Acosta did conscionable that.

In Monday’s determination overturning Colonel Acosta’s ruling, the subject committee reappraisal sheet said the “withdrawal of the contested connection renders the substance moot.”

Mr. Nashiri’s defence lawyers said they were disappointed that the sheet had not gone further and forbidden the usage of grounds derived done torture successful pretrial litigation. They had sought a broader determination that recovered Colonel Acosta’s reasoning flawed, and an bid to reappraisal filings made betwixt the prosecution and the justice to find if different specified grounds had seeped into the case.

Mr. Nashiri’s subject lawyer, Capt. Brian L. Mizer of the Navy, said Monday that his squad was considering an entreaty to a civilian court, the U.S. Court of Appeals for the District of Columbia Circuit.

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