Guantanamo, Cuba: A defense lawyer asked a military judge on Monday to dismiss the September 11 conspiracy charges against a Saudi prisoner who was tortured in CIA custody, describing the secret overseas prison network where the man was held as part of a "vast criminal international enterprise" that trafficked in torture.
Defense lawyers in the case have said for years that the case should be dismissed based on a rarely successful legal doctrine involving "outrageous government conduct".
On Monday, Walter Ruiz became the first defender to present the argument to a military judge on behalf of Mustafa al-Hawsawi, who is accused of helping the September 11 hijackers with money transfers and travel arrangements.
The interrogation and detention program as carried out on his client so "shocks the conscience", he said, that Hawsawi should be dropped from the conspiracy case.
In a nearly daylong presentation, Ruiz used government documents to argue that the prisoner was sexually assaulted in his first month of detention, waterboarded by CIA interrogators without permission, deprived of sleep and kept isolated in darkened dungeonlike conditions starting in 2003.
In order to build their cases against former CIA prisoners, prosecutors had so-called clean teams of federal agents reinterrogate the defendants at Guantánamo Bay in 2007, without using or threatening violence.
"But no matter how many cleaners they bring into this court, they cannot clean it up," Ruiz said. "It smells and reeks of coercion, torture, brutality and depravity."
The CIA's black site program was established by the administration of President George W. Bush in the aftermath of the September 11, 2001, attacks and was shut down by President Barack Obama.
About 100 suspects were held incommunicado and uncharged in CIA prisons in Afghanistan, Thailand, Poland and elsewhere, beyond the reach of US courts.
To create and sustain the program, Ruiz said, the United States spent hundreds of millions of dollars paying foreign countries to let them establish CIA facilities abroad, shuttled prisoners around the world and employed two psychologists to run it.
He called it "a vast international criminal enterprise operating squarely outside the confines of domestic and international law".
The lead prosecutor, Clayton G. Trivett Jr., defended the programme, and revelations that the FBI collaborated with the CIA in the black sites, as the response of a wounded and fearful nation at war "while the towers were still smoldering."
On September 12, 2001, Trivett said, Bush concluded that the United States could "no longer afford" to continue its "simple catch, apprehend, indict and prosecute" approach to law enforcement.
Trivett said that it made sense that the FBI coordinated its investigation with the CIA, particularly because a lack of intelligence coordination was blamed for failing to prevent the September 11 attacks. "It would be outrageous if it didn't," he said.
The timing of the argument suggests that Col. Matthew N. McCall, the fourth judge to preside in the case, will be able to decide the potentially case-turning issue before he retires later this year.
The judge has a busy schedule of testimony about the CIA program and the FBI role in it this month and later in the year.
To make his argument in open court, Ruiz devoted hours to showing the judge - but not the public - secret documents. He accused the US intelligence community of over-classifying information to hide "dirty secrets".
One in particular, he said, "Would not necessarily implode the national security of the United States. But certainly, it would be embarrassing. And ugly. And shocking."
Ruiz argued that, despite the Bush administration's effort to "legalise torture" through Justice Department memos authorizing waterboarding and other "enhanced interrogation techniques", the record showed that Hawsawi's captors "exceeded, ignored and violated even those specific guidelines".
The CIA, for example, has never acknowledged the waterboarding of Hawsawi. But in April 2003, his second month of custody, according to a Senate study, Hawsawi "cried out for God" while he was subjected to a waterboarding technique at a particularly brutal CIA prison in Afghanistan with the code name Cobalt.
Some violations were "outright vengeance or retribution," Ruiz said. Others were a result of a lack of training and guidance, or what Dr. James E. Mitchell, the psychologist who waterboarded prisoners for the CIA, testified years ago constituted "abusive drift."
Ruiz urged the judge to reject a prosecution argument that, at trial, the government would rely on evidence gathered by the FBI as part of a criminal investigation, rather than intelligence gathering by the CIA, which was interrogating the September 11 defendants from 2002 to 2006, before their transfer to Guantánamo Bay.
Testimony for years, he said, demonstrated a "symbiotic relationship between the CIA and FBI, with no clear line of demarcation".
The presentation illustrated the hold that intelligence agencies have on what the public can know.
Trivett asked the judge to prohibit Ruiz from publicly showing the court a newspaper article, as well as a brief that was publicly posted on the website of the US Supreme Court. McCall agreed. "I have a duty to protect what I am told is classified information," he said.
Hawsawi and the three other defendants were absent from court during the presentation.
Matthew Engle, representing the defendant Walid bin Attash, said there was tension at the prison over changing practices or policies that resurrected "security precautions that haven't existed for over a decade".
The Pentagon recently installed the 23rd commander of the 2-decade-old prison operation, an Army colonel who had been in charge of a Military Police Battalion at the prison from 2018 to 2020.
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