Prosecutor Who Sought to Use Evidence Derived From Torture Leaves Cole Case

GUANTánAMO BAY, Cuba — A federal prosecutor in the USS Cole bombing trial who advocated the use of evidence obtained from torture, in defiance of Biden administration policy, has left the case.

Defense attorneys said they were informed on Wednesday, hours before talks with the trial judge, that the military commission’s new chief prosecutor had replaced the long-serving chief prosecutor. five, Mark A. Miller.

Mr. Miller, an assistant United States attorney from Louisiana, has been tasked with prosecuting the death penalty against Abd al-Rahim al-Nashiri since 2015. Mr. Nashiri is accused of being the mastermind of the October 2000 bombing of the Cole off the coast of Yemen that killed 17 American sailors.

No trial date has been set for Mr. Nashiri, who was charged in 2011. It is not known whether the personnel change will slow the case, which has been delayed by court challenges. higher levels, conflict of interest issues, the coronavirus pandemic and protracted. evidence hearing.

Mr. Nashiri, who was detained by the CIA from 2002 to 2006, was submerged in water, sleep deprived, forced into a painful position and threatened with a drill and shotgun. Some of the evidence against him was obtained through the abuse of other detainees, court testimony has shown.

Chief Prosecutor, Rear Admiral. Aaron C. Rugh of the Navy, declined to discuss the personnel decision, citing media communication restrictions imposed by higher authorities. He has been at the job since June. Mr. Miller could not be reached for comment.

The law governing military commissions at Guantánamo Bay prohibits the use of evidence obtained from defendants through torture or other cruel, inhuman or degrading treatment.

But at a hearing in May, Mr. Miller argued that evidence from anyone other than the defendant obtained through torture could be lawfully admissible at trial.

He was referring to claims that another prisoner, Ahmed Muhammed Haza al-Darbiwas made about Mr. Nashiri in 2002. Mr. Darbi spoke to interrogators that year in Bagram, Afghanistan, after American soldiers, hooded and naked, deprived him of his sleep and forced him to clean up the waste. of humans with bare hands.

Mr. Miller argue that what happened for Mr. Darbi does not meet the legal definition of torture. Even if that happened, he said, prisoners’ testimony to FBI interrogators could still be admissible at the judge’s discretion under military commission laws.

Attorneys for the Justice Department rejected that view in higher court proceedings, saying it was Biden administration policy that ruled out the use of evidence in the case derived from investigation. ton.

The judge, Colonel Lanny J. Acosta Jr., later denied using what Mr. Darbi told his interrogators in 2002 from the trial. “Allowing the admission of such evidence could significantly undermine the apparent and factual fairness of the criminal proceeding against the defendant by making the trial sufficiently unfair to cause any conviction resulting in a due process dismissal,” he wrote in June.

The judge left open the possibility that investigators gathered evidence based on what they learned during that interrogation that could be used at trial.

The dispute over the use of statements obtained through torture first emerged in the Cole case during the final months of the Trump administration, when prosecutors filed a legal filing containing information he Nashiri spoke to CIA interrogators at a dark web. Defense lawyers asked the judge to dismiss the case, saying confidential court records made it clear that Mr. Nashiri had given statements while being tortured.

Instead, Colonel Acosta ruled that in certain circumstances, a judge, but not a military jury, may consider evidence obtained through cruel, inhuman or even torture methods. The Biden administration refuses to defend that position and maintains that no evidence obtained from torture will be used in the Guantánamo trials.

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