The Senate Intelligence Committee report on CIA torture inadvertently could bolster the legal defense of an accused Sept. 11 plotter and other Guantanamo Bay detainees who have long complained about abuse and mistreatment at the hands of the spy agency.
The findings also could provide new evidence to help former detainees pursue lawsuits abroad, especially in Europe, against countries that allowed the CIA to run secret prisons where many of the harsh interrogations occurred. The Senate report would make it much harder for the U.S. or CIA to deny such mistreatment took place.
FOR THE RECORD: In the Dec. 11 Section A, an article about the Senate Intelligence Committee's report on CIA torture and its possible ramifications for Guantanamo Bay detainees misstated the position of the defense lawyers for Ramzi Binalshibh, accused by the U.S. of being a “key facilitator” in the Sept. 11, 2001, terrorist attacks. They have raised concerns about his behavior in court after his years of undergoing torture by the CIA, but they are not arguing that he is mentally incompetent to understand the charges against him or to help in his defense.
"From a defense angle, this is exciting for all their cases," said Alka Pradhan, a human rights attorney with the anti-death-penalty group Reprieve U.S. who has helped represent Guantanamo detainees. "It confirms what we have been saying all along."
The report may be particularly useful to Ramzi Binalshibh, a Yemeni accused by the U.S. of being a "key facilitator" in the Sept. 11, 2001, terrorist attacks.
As Binalshibh awaits military trial at the U.S. facility prison in Cuba, his attorneys are hoping their client will be tried separately from four other Sept. 11 defendants, including the self-described mastermind, Khalid Shaikh Mohammed.
Binalshibh's attorneys say they want a separate trial for him because of his "behavioral and psychological problems," which have included screaming during pretrial hearings and refusing to cooperate with his defense team. They may also be building a claim of mental incompetence, which the Senate report could be used to support.
The 42-year-old Binalshibh, the Senate panel found, spent four years at a secret CIA detention site before being moved to Guantanamo in 2006. While there, the report says, he "exhibited behavioral and psychological problems, including visions, paranoia, insomnia and attempts at self-harm. CIA psychologists linked Binalshibh's deteriorating mental state to isolation and inability to cope with his long-term detention."
This year, the military judge in the case separated Binalshibh from the other defendants, but later reversed himself until a more thorough mental health evaluation could be completed.
In court, Binalshibh has railed at the judge, screaming in English that the military-run facility is a "secret CIA prison" and that the judge is a "war criminal." In the prison, he has complained about loud noises, a vibrating bed and foul smells that awaken him at night.
His defense lawyers say they have grown concerned he is not mentally competent to understand the gravity of the charges against him or help in his own defense.
Even before Tuesday's release of the Senate committee's executive summary, defense lawyers for the five defendants were seeking redacted copies of the complete report, betting the descriptions of harsh treatment and torture would assist their clients.
James G. Connell III, a lawyer representing Ammar al Baluchi, also known as Ali Abdul Aziz Ali, said the findings are "only the tip of the iceberg."
Pradhan said even a jury of U.S. military members at Guantanamo would find some compassion for the Sept. 11 defendants in light of the disclosures in the report. She said detainees who had been tortured may try to use their past abuse to argue for leniency or to win transfers from Guantanamo.
Eugene Fidell, a military law expert, predicted the best defense lawyers will get is more delays. "It will complicate things and it will slow the process down," he said. "It will retard the course of justice even further in these cases, and that's the tragedy."
Binalshibh is not alone among the Sept. 11 defendants mentioned in the report. Mohammed was waterboarded 183 times, the report says.
Mustafa Ahmed Hawsawi, another of the five defendants, was doused with water to simulate waterboarding. He later was diagnosed with "chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse," according to CIA records quoted in the report. At one point he was denied outside medical attention, although the CIA later "was forced" to seek medical assistance for him and four others that cost more than $1 million, the report says.
The five defense teams hope that if the men are convicted, descriptions of the harsh mistreatment could garner some sympathy from the military jury that must decide whether they live or die.
"Torture violates American military values," Connell said.