A Pentagon appeals panel on Thursday upheld a judge’s decision in the U.S.S. Cole bombing case to forbid the use of the defendant’s confession as derived from torture.
The decision by the U.S. Court of Military Commission Review was still under seal. But Allison F. Miller, the lawyer for the defendant, Abd al-Rahim al-Nashiri, said the panel unanimously rejected a U.S. government request to reinstate use of the confession at his upcoming death penalty trial.
Mr. Nashiri is accused of orchestrating the Qaeda suicide bombing attack on the warship in October 2000 in Aden harbor in Yemen. Seventeen soldiers were killed and dozens more were wounded. The trial date is set for Oct. 6, one week shy of the 25th anniversary of that attack.
The ruling was a blow to a prosecution strategy of seeking to build torture-free cases against former C.I.A. prisoners. Prosecutors believed that Mr. Nashiri’s interrogations by federal law enforcement agents in 2007 — his fifth year in U.S. custody — were key pieces of evidence.
Mr. Nashiri, who was arrested in 2002, had spent four years in secret C.I.A. prisons, where interrogators used violence, threats and punishment to get him to talk. He was transferred to Guantánamo Bay in September 2006. Four months after his arrival, he was questioned again, this time by federal law enforcement agents, and told his participation in the interrogations was voluntary.
The agents testified that the atmosphere was cordial, and that he willingly answered questions about his role in Al Qaeda and his relationship with Osama bin Laden.
But in August 2023, Col. Lanny J. Acosta Jr., the judge at the time, suppressed the statements as the product of torture. “Any resistance the accused might have been inclined to put up when asked to incriminate himself was intentionally and literally beaten out of him years before,” Colonel Acosta wrote in his 50-page ruling.
According to evidence in pretrial hearings, Mr. Nashiri was physically and emotionally tortured during an odyssey through the C.I.A.’s secret prison network — from Thailand to Poland to Afghanistan and then Guantánamo Bay. He was waterboarded, confined inside a cramped box, rectally abused and brutalized in other ways to coerce him to answer questions about future and suspected Qaeda plots.
“If there was ever a case where the circumstances of an accused’s prior statements impacted his ability to make a later voluntary statement, this is such a case,” the judge wrote. “Even if the 2007 statements were not obtained by torture or cruel, inhuman and degrading treatment, they were derived from it.”
The chief prosecutor for military commissions, Rear Adm. Aaron C. Rugh, was reviewing the ruling.
In the case involving the Sept. 11, 2001, attacks, another judge, Col. Matthew N. McCall, is deciding whether to similarly suppress the confession of one of the defendants, Ammar al Baluchi.
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