Mr. Nashiri’s attorneys had been exploring a possible protection idea that the US had already killed plotters of the Cole assault who had been extra senior and extra culpable. The prosecutors requested the decide to finish that line of inquiry, pointing to a categorized cable that mentioned Mr. Nashiri had instructed C.I.A. brokers as he was being interrogated at a secret jail in Afghanistan that Mr. Fadhli had not been concerned.
Protection attorneys mentioned the regulation prohibited the usage of the assertion — or any assertion by a defendant that was derived from torture or every other merciless, inhuman or degrading remedy — all through your complete proceedings. Prosecutors argued there was an exception for the interval when a decide determined pretrial issues earlier than a navy jury was chosen to listen to a case.
The navy decide, Col. Lanny J. Acosta Jr., agreed with the prosecutors in a ruling dated Could 18, 2021 that also stands.
Protection attorneys within the case mentioned Tuesday that they had been troubled by the language within the Justice Division submitting that left open the potential for an exception for a future administration, notably given the longevity of the prosecution. It was initially conceived by the Bush administration and pursued by the Obama administration. It has been topic to lengthy delays attributable to each prosecution and protection appeals of rulings by the Guantánamo judges.
“It’s a trigger for concern,” mentioned Michel Paradis, an appellate lawyer for Mr. Nashiri, who works for the Division of Protection. “The Trump administration took a really totally different view of torture than the Biden administration does. And this pleading leaves open the discretion to vary their place.”
Additionally of concern, he mentioned, was the federal government’s disclosure within the submitting on Monday night time {that a} warfare court docket prosecutor, in a evaluate of 100,000 pages of secret filings, found one other occasion when prosecutors invoked one thing Mr. Nashiri instructed the C.I.A. at certainly one of their black websites. It was in a 2014 submitting.
Protection attorneys had been unaware of the usage of the assertion from the black websites as a result of, on the nationwide safety court docket, prosecutors may give info to the decide unilaterally in a course of that allows them to guard, redact or rephrase categorized info. The protection attorneys had been weighing on Tuesday whether or not to hunt a extra vigorous, unbiased examination of the 100,000 pages.