A military judge has ordered the prison at Guantánamo to let defense attorneys photograph scars on the ankles and wrists of the waterboarded, alleged 9/11 mastermind, Khalid Sheik Mohammed, to preserve evidence in his death-penalty case.
But, Army Col. James Pohl made clear in his ruling, unsealed on the eve of Thanksgiving, that the public may never see the images that defense lawyers consider proof that the CIA tortured him in years of secret custody where U.S. agents waterboarded Mohammed 183 times.
Prosecutors, who don’t concede the men were tortured before arriving at Guantánamo, wanted Mohammed and co-defendant Walid bin Attash to pose for military photographers and have Guantánamo prison commanders control the photos.
Defense lawyers called it an intrusion into the attorney-client relationship, and Pohl agreed.
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“Messer’s Mohammad and bin Attash have shown a need for the photograph preservation of their purported injuries,” he wrote in his order authorizing the defense teams to take the pictures rather than the Pentagon’s elite Combat Camera unit, as the prosecutors proposed.
Mohammed and his four fellow defendants in the case are held at a secret prison at the U.S. Navy base at Guantánamo because the CIA program that subjected them to harsh overseas interrogations for the George W. Bush administration is still classified.
Lawyers for Mohammed say he has scars on his wrists and ankles. Bin Attash once tried to take off his shirt in court to show the judge scars on his chest.
Pohl didn’t rule that the photos of Mohammed and bin Attash would necessarily be classified. In the event intelligence authorities don’t classify the images, however, he invoked a war-court protective order he devised that prevents release of non-secret material “where disclosure is detrimental to the public interest.”
Pohl did not elaborate in his three-page ruling on how the public interest would be damaged if the public sees photos of scars on the men the CIA kept in secret prisons for three years before Bush had them delivered to Guantánamo in 2006 for trial. Agents captured those two men in Pakistan in 2003 and spirited them to secret sites around the world, out of reach of the International Committee of the Red Cross.
Little is known about the treatment of Bin Attash, who is accused as a lieutenant of Mohammed in putting together the plot that sent the 19 hijackers to the United States to carry out the terrorists attacks that killed nearly 3,000 people in New York, the Pentagon and Pennsylvania on Sept. 11, 2001.
The defense lawyers argue that what the CIA did with the alleged conspirators should be made public at their death-penalty tribunal, to be heard by U.S. military officers. The prosecutor, Army Brig. Gen. Mark Martins, argues they can get a fair trial either way and has proposed a January 2015 trial date.
In October, nine military and four civilian Pentagon-paid 9/11 case defense lawyers wrote President Barack Obama asking him to declassify the CIA’s so-called Rendition, Detention and Interrogation program in order to make it a fair trial.
To do otherwise, they said, would “only facilitate further concealment of war crimes committed by agents of our government.”
Air Force Capt. Michael Schwartz, lawyer for Bin Attash, said that as of Monday the commander-in-chief had not responded. “Busy pardoning turkeys, I guess,” he said.
At the White House, National Security spokeswoman Caitlin Hayden would not say whether the president or his staff would be replying.
“As you probably know, as a general matter we don’t comment on the President’s correspondence, she said.