Abd al Rahim al Nashiri is on trial at Guantanamo Bay as the alleged mastermind of the bombing of the U.S.S. Cole in 2000. If convicted, Nashiri could face execution.
For now, the case remains mired in preliminary hearings likely to stretch on for at least another year. The legal regime at Guantanamo makes for convoluted proceedings, but the marquee cases – against Nashiri and the five men accused of plotting the 9/11 attacks – have also been complicated by the CIA’s use of torture. The government maintains that their evidence against Nashiri does not rely on statements obtained through torture, but his lawyers argue that his treatment is an indelible stain on the prosecution’s case.
Guantanamo defense attorneys were given new ammunition this week with the Senate intelligence committee’s report on CIA interrogations. The report lays out in brutal detail how Nashiri was taken into CIA custody in 2002, brought to five different black sites, waterboarded three times, and subjected to mock executions with a drill held to his head. The report also accuses the CIA of “implying that his mother would be brought before him and sexually abused; blowing cigar smoke in al-Nashiri’s face; giving al-Nashiri a forced bath using a stiff brush; and using improvised stress positions that caused cuts and bruises resulting in the intervention of a medical officer, who was concerned that al-Nashiri’s shoulders would be dislocated using the stress positions.”
Richard Kammen, one of Nashiri’s lawyers and a specialist in capital cases, told The Intercept that “the torture pervades everything.” He spoke to us about the Senate report and its impact on his client’s defense. This interview has been edited for clarity and condensed.
The Intercept: Some of the details of Nashiri’s abuse – like the fact that he was subject to mock executions – had come out years ago. And you’ve had some access to classified details. What’s completely new to you from the Senate report?
Kammen: What was completely new to us was the fact that within the CIA there were agents on the ground saying this shouldn’t be happening: “he’s told us everything, he’s compliant, he doesn’t have any more information.” And people higher up were saying, “we don’t care, keep the enhanced interrogation going.”
How do these details of his torture shape your defense?
The government has said that they want to enter in the evidence a statement Nashiri provided to what they call the FBI “clean team.”
Meaning the interrogators did not use brutal techniques to get that statement. So the prosecution wants to use what they believe to be an incriminating statement that did not result from torture.
Yes. What we know happened is the CIA brought Nashiri to Guantanamo in September 2006 [editor’s note: when the CIA’s black site program was acknowledged by President Bush. The Senate report confirms that Nashiri had been held at Guantanamo before, in a black site there.] In January 2007, the FBI interviewed him for three or four days. It’s our view that that the statement he gave to the FBI is not voluntary. You can’t torture a guy for four years and then stop for six months and say, OK, let’s go with that.
The other way in which it will effect the guilt/innocence piece is the government has now said they want to use hearsay from people in Yemen who were alleged conspirators in the case, which were in our view derived from statements made by Nashiri and others under torture.
You’ve also argued that Nashiri suffers long-term mental damage from his time in CIA custody. The Senate report notes that as far back as 2003, some CIA psychologists diagnosed him with anxiety and “’major depressive’ disorder.”
This spring we asked that the proceedings be stopped until he receives adequate medical care, and we’ll review that in light of Senate report. The medical care he’s been getting in Gitmo is totally inadequate for someone who suffers from chronic and complex PTSD. We’ve asked that he be provided with an MRI exam to see if he suffers from brain damage. There is no MRI machine in Gitmo. We learned that there was suppose to be one coming and then they mysteriously took it somewhere else after we asked for it – [the Miami Herald’s] Carol Rosenberg wrote about it. Supposing he has organic brain damage? There are questions of whether the case can even go forward.
And if he is convicted, he could face the death penalty. How does his torture factor into the penalty phase of trial?
Anything that would constitute a reason for the jury not to kill the defendant is considered mitigating evidence. For example, in the Senate report, they talk about how the chief interrogator was saying, “If we continue to torture Nashiri he’s going to suffer permanent mental injury.”
The government can’t functionally destroy a person and then say, “now you’ve got to kill him.” Whatever the guy was in 2002, he’s not the same person now.
Our view is also that the fact that Bush, Cheney, [Jose] Rodriguez and David Addington were knowing participants in all this and have not been subject to prosecution is mitigating under notions of relative culpability. I think the fact that the architects of this project were paid $81 million dollars is mitigating [ed. note: that’s the value, revealed in the Senate report, of the CIA’s contract with psychologists James Mitchell and Bruce Jessen, who theorized and oversaw interrogations.] Bribes to the countries that hosted these dark places are mitigating. The whole program, in our view, is mitigating. A juror may well conclude that this thing is so corrupt and so grotesque that to kill somebody who has been caught up in this is just wrong. The torture pervades everything.
You’ve been in a long battle with the prosecution over what they need to turn over about Nashiri’s time in CIA custody as part of the discovery process. Earlier this year, they stalled, citing the declassification of the Senate report. Now that it’s public, what more are you waiting for?
The military commissions judge ordered them to provide discovery in ten categories of information, and so far, we haven’t gotten anything as a result of that order. If the government complies, the volume of material will be enormous.
The Senate report also made us aware of how cavalier with the truth they have been in their representations to the commission, if they really had access to the underlying information from the report. Among the things they are ordered to produce is the training records of the people who did all this stuff – it’s alluded to in the report that these people doing the interrogations were badly trained or didn’t have training. In arguing over medical care, the government has said even if Nashiri suffers from PTSD or from depression as a result of torture, there’s no evidence that results from the CIA. Now we just know that’s not true.
You have a security clearance, and you’re circumscribed in what you’re allowed to talk about. The administration has maintained in court proceedings that much about the CIA’s detention and rendition program is still secret (even the Senate report refers to widely reported black site locations and people by aliases.) Does the report’s release have any impact the secrecy shrouding your work?
We can talk about the stuff in the report with Nashiri, and we can talk about it with the press. One of the things we can say is that the report is as good as it gets, but it’s still incomplete. I can’t tell you specifics, because I am not allowed to tell you what he’s told us. The government still seeks to classify his thoughts, his memories, his experiences. To the extent that there’s information that I’m aware of that’s not in that report, I can’t talk about it.
Photo: AP/Janet Hamlin