Does the Accused USS Cole Bomber Have a Right to Hear Evidence of his Own Torture?

Does an accused man have the right to hear classified evidence he already knows, when it’s directly relevant to whether he’ll be put to death?

Not in a U.S. military commission, according to the government. Prosecutors argued Wednesday that Guantanamo detainee Abd al Rahim al-Nashiri, accused of plotting the bombing of the USS Cole 13 years ago, can be excluded from hearings that present any classified evidence – even if that evidence is of his own torture by U.S. agents in a CIA prison.

The government has acknowledged that al Nashiri was held secretly in CIA “black sites” and subjected to waterboarding, among other “enhanced interrogation techniques,” for years after he was captured by U.S. authorities in 2002.

Al-Nashiri’s lawyers, arguing this week at pre-trial hearings in a Guantanamo Bay military commission, insist he has a right to hear the evidence against him, particularly if it concerns his treatment, which is directly relevant to whether he’ll get the death penalty.

In a death penalty case, the detainee’s treatment in prison is considered “mitigating evidence” that could weigh against his being executed by the government. Nashiri’s civilian defense lawyer and death penalty expert, Richard Kammen, argued that his client needs to be able hear the evidence the government presents about his treatment so he can tell his lawyers whether or not it’s true, and whether they can and should contest it.

As Nashiri’s military defense lawyer, Air Force Major Alison Daniels, put it: “Given that the government seeks to kill Mr. Nashiri” he should be able to see the evidence being presented against him. Especially if he already knows it.

As usual in these military commission cases, much of the morning was taken up with Judge James Pohl questioning the lawyers about what they believe the relevant law to be, since there is no controlling law on this issue (or on many others) in the military commission system.

In particular, the military commission rules do not specify that a defendant may be excluded from his own trial, or pre-trial hearings, on the basis that they contain classified evidence. In a federal court, by contrast, the law is clear that judges, pursuant to the Classified Information Protection Act and many years’ worth of precedent, may exclude a defendant from court in some instances. Although the military commission rules do provide for the protection of classified evidence, Nashiri’s military defense lawyer insisted that other parts of the rules suggest he has an absolute right to be in the courtroom at all times. While the prosecution can cite case examples supporting the defendant’s exclusion in the civilian system, it can’t cite any examples in the military commission system, because there aren’t any.

Only seven cases have been completed in the military commission system since it was created in 2001. None of those have involved a contested trial on the evidence.

Judge Pohl, apparently trying his best to deal with a confusing situation, vigorously questioned each side’s lawyers on what they thought the relevant law was. But at some points in the discussion it seemed the only thing they could agree on was the common refrain: “I’m confused.”

Part of the problem is that any analogy to the civilian criminal system is limited because those cases don’t involve evidence of torture by U.S. officials in secret prisons. That’s key, because not only was the torture illegal, but the defendant obviously already knows about it.

A CIA Inspector General’s report released in 2009 confirmed that among other things, Nashiri was stripped naked, hooded and threatened with a power drill by his CIA captors.

Another challenge is that the extent of the defendant’s rights in a military commission are unclear. Judge Pohl has not yet ruled to what extent the U.S. Constitution applies at Guantanamo Bay.

This is a cross post from The Huffington Post.