Take the issue of torture, which arose at a recent Guantánamo Bay hearing. It is an indisputable fact that the U.S. tortured detainees, including alleged 9/11 mastermind Khalid Sheikh Mohammed, during interrogations between 2001 and 2006. Yet when defense attorney Jason Wright pointed out at a recent hearing that his client “was subjected to waterboarding for 183 sessions,” Judge James Pohl ruled him out of order for discussing classified information that can be uttered only behind closed doors.
Fellow defense attorney Cheryl Bormann complained that such rulings undermine the defense team, whose efforts keep coming up against “a brick wall because of the classification issue.”
“You can’t gag somebody about talking about torture and then want to kill them,” she argued.
Defense attorneys want to raise the issue of torture both because its practice is illegal under U.S. and international law and because it is believed by most experts to yield inherently unreliable information. At the hearing, the defense team said the secrecy of their clients’ detention and torture in secret CIA prisons “violated the U.N. Convention against Torture,” which the U.S. ratified in 1994, and prevented them from filing complaints with the U.N. under that treaty.
Because they are being prevented from even raising the issue in their clients’ defense, the defense team asked that the death penalty be ruled out as a possible sentence.
“You have the power to dismiss the death penalty or dismiss these charges because of the obstacles we face in this case,” argued Walter Ruiz, who represents detainee Mustafa al-Hawsawi. Although the Convention against Torture “gives certain rights” to the accused, “those rights do not exist, certainly not in front of this commission,” said Ruiz.
But prosecutor Clay Trivett argued that if detainees felt they were “mistreated in U.S. custody” they could file a complaint in federal court, and that should be sufficient.