A government lawyer appealed to a Pentagon review court on Friday to overturn a torture ruling in the Sept. 11 case that disqualified the use of the confessions of a man accused of conspiring in the hijacking plot that killed nearly 3,000 people.
A military judge threw out the 2007 interrogations of Ammar al-Baluchi last year as the spoils of C.I.A. torture, isolation and conditioning in the agency’s secret prisons, known as the black sites. Prosecutors in the death penalty case consider his “statements” to be their best evidence against him, because, they say, he willingly helped agents identify records of his money transfers to the hijackers before Sept. 11, 2001.
“He proudly and matter-of-factly inculpated himself for his role in the 9/11 attacks,” said Clayton G. Trivett Jr., a military commissions prosecutor, echoing arguments the government used at the war court that failed to persuade a military judge.
The C.I.A.’s use of torture and secret detention has stalled the government’s effort to start the death penalty trial of five men accused of conspiring in the hijackings.
One of the men has been ruled mentally unfit to stand trial. The accused mastermind of the plot, Khalid Shaikh Mohammed, who was waterboarded 183 times, has yet to have a full hearing on his torture claim.
But the challenge of Mr. Baluchi, who is Mr. Mohammed’s nephew, has proceeded on a quicker path. The outcome of the government appeal could portend whether prosecutors are able to use the confessions of his co-defendants, which were also taken by federal agents after the prisoners had spent years in isolating, at times brutal, C.I.A. detention.
On Friday, Col. LaJohnne Morris, an Army judge on the appellate panel, asked if there were any circumstances by which a former C.I.A. prisoner could have voluntarily confessed after his experiences in a black site.
James G. Connell III, Mr. Baluchi’s capital defense lawyer, replied that the judge who threw out the confessions believed there were.
That judge, Col. Matthew McCall, wrote in his 111-page decision that might have been possible if the agents had used “a cleansing statement” that made clear to Mr. Baluchi that his previous admissions to the C.I.A. could not be used against him and if he was given a full Miranda warning against self incrimination, Mr. Connell said.
A different appellate panel of the court has upheld suppression of a similar interrogation of Abd al-Rahim al–Nashiri, who is accused of plotting Al Qaeda’s bombing of the U.S.S. Cole that killed 17 American sailors off Yemen in October 2000.
The chief judge, Lisa M. Schenck, asked whether Mr. Baluchi’s abuse by the C.I.A. was not as violent and long lasting as that of Mr. Nashiri, who was waterboarded, threatened with death and held for a time in a coffin-like box.
Mr. Baluchi was deprived of sleep for more than three days by being chained upright and nude. He was nearly drowned with ice water. Interrogators also slammed his head into a wall until they grew tired, using techniques the C.I.A. called “enhanced interrogation.”
Mr. Connell replied that the program was the same for both men, to essentially use violence to condition cooperation. The fact that Mr. Baluchi broke earlier, after about three days of sleep deprivation, may have only proved that he was more susceptible to the torture, he said.
“For five more months they held him in complete darkness and filth in a literal dungeon the C.I.A. described as an enhanced interrogation technique in itself,” Mr. Connell said. Mr. Baluchi spent years in solitary confinement and was questioned about 1,000 times before he was taken to Guantánamo in September 2006. Then, about four months later, agents questioned him in a cell that the military judge visited and noted resembled those used in the black site.
Mr. Trivett argued that, for Mr. Baluchi, his transfer to Guantánamo was a turning point. The prosecutor said that Mr. Baluchi understood that he was in military rather than C.I.A. detention, and that he did not have to speak with the agents but was courteous and respectful to them.
But Mr. Connell, the defense lawyer, said Mr. Baluchi was polite and cooperative when the F.B.I. questioned him, because that was how the C.I.A. trained him.
It could be months before the three-judge panel decides the question of whether to find fault in the torture ruling, and return the question to the Sept. 11 pretrial hearings, which have a new judge.
Lawyers for the other three defendants in the case are preparing a filing for the Supreme Court to try to reinstate a plea agreement they made with prosecutors and a senior Pentagon official in the summer of 2024.
Carol Rosenberg reports on the wartime prison and court at Guantánamo Bay. She has been covering the topic since the first detainees were brought to the U.S. base in 2002.
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