Appeals court acts on torture evidence
on Dec 11, 2007 at 7:13 pm
Update Monday a.m., Dec. 17: The motion to declare interrogation methods to be torture, described in the fifth paragraph of the post below, is now available in redacted form. It can be downloaded here. (Thanks to the Miami Herald, via Howard Bashman’s How Appealing blog, for the text of the motion.)
The D.C. Circuit Court on Tuesday. in a temporary order, told Bush Administration officials to preserve “torture evidence” as it has been described by lawyers for a Guantanamo Bay detainee, Majid Khan, considered by the government to be a “high-value detainee” whom it expects to prosecute.
Khan’s motion to preserve the material referred to “all evidence concerning his torture by U.S. personnel for more than three years at secret overseas prisons operated by the Central Intelligence Agency.” Khan’s motion can be found here, in the redacted form cleared by a court security officer. The Circuit Court’s one-page order, specifically directed to Defense Secretary Robert M. Gates, required “all measures necessary to preserve the material described.”
The Court said its order was not to be understood as a ruling on the merits of the request for preservation, since it was issued for the purpose of giving the Court “sufficient opportunity to consider the merits.”
In a separate order, the Circuit Court gave the government until Dec. 20 to respond to the motion; Khan’s lawyers must file a reply by Jan. 4. (Both orders can be found here.)
That briefing schedule not only will apply to the preservation of evidence issue; it also will reach a separate motion — still classified — that Khan’s lawyers filed on Dec. 6. All that is known about that motion, aside from the fact that it remains secret, is that it is a plea “to declare interrogation methods applied against petitioner [Khan] constitute torture,” according to the docket entry at the Circuit Court in Khan v. Gates (07-1324).
Lawyers for both sides, according to the briefing order issued Tuesday, are to file consolidated written arguments covering both the motion to preserve torture evidence and the classified motion — referred to in the order as simply a “motion…for declaration.”
While there is an ongoing controversy now about CIA destruction of videotapes it had made of secret interrogations using aggressive methods, Khan’s motion to preserve was filed before that controversy broke into public view. The motion was filed Nov. 13, and the revelation of the tapes destruction came on Dec. 6. Khan’s separation motion seeking a declaration that he was tortured was filed on Dec. 6; it is unclear whether it mentions the tapes destruction issue.
In asking the Circuit Court to make sure any “torture evidence” is saved, Khan’s attorneys said it “may be relevant” to any claim he might make against the government in litigation, or to any defense he may rely upon if prosecuted.
“Any failure to preserve this evidence, whether intentionally or through neglect, would substantially impair this Court’s ability to determine by a preponderance of the evidence whether Khan is properly detained as an ‘enemy combatant,’ ” his lawyers told the Circuit Court.
They added: “This evidence should also be preserved because information about the CIA detention and interrogation program — what happened to Khan and other ‘ghost’ prisoners, where it happened, and who is responsible — will be the central focus of any military commission proceedings involving Khan.”
The evidence, the motion added, also may be needed for “possible congressional hearings, criminal investigations, and internal agency investigations concerning the torture methods inflicted on khan.”
