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Prosecutor Who Sought to Use Evidence Derived From Torture Leaves Cole Case

GUANTÁNAMO BAY, Cuba — A federal prosecutor in the USS Cole bombing trial who argued for the use of evidence derived from torture despite the policies of the Biden administration has left the case.

Defense attorneys said they were notified Wednesday, hours before a conference with the trial judge, that the new chief prosecutor for military commissions had replaced long-serving chief prosecutor Mark A. Miller.

Miller, an assistant US attorney from Louisiana, had been assigned to the death penalty prosecution of Abd al-Rahim al-Nashiri since 2015. Mr Nashiri is accused of masterminding the Cole bombing near Yemen in October. 2000, in which 17 American sailors died.

No trial date has been set for Mr Nashiri, who was charged in 2011. It is not known whether the staff change would delay the case, which has been delayed by challenges from higher courts, conflicts of interest, the coronavirus pandemic and lengthy hearings on evidence.

Mr. Nashiri, detained by the CIA from 2002 to 2006, was waterboarded, unable to sleep, twisted into painful positions and threatened with a drill and pistol. Some evidence has been obtained against him through abuse of other detainees, according to court testimony.

The Chief Prosecutor, Rear Ad. Aaron C. Rugho of the Navy, declined to discuss the personnel decision, citing restrictions on media contacts imposed by higher authorities. He has been employed since June. Mr Miller could not be reached for comment.

The law governing military commissions in Guantánamo Bay prohibits the use of evidence obtained from a suspect through torture or cruel, inhuman or degrading treatment.

But at a hearing in May, Mr. Miller argued that evidence obtained through torture from anyone other than the defendant was legally admissible at trial.

He referred to statements made by another detainee, Ahmed Muhammed Haza al-Darbi, about Mr Nashiri in 2002. Mr. Darbi spoke to interrogators in Bagram, Afghanistan that year after US soldiers detained him hooded and naked and deprived him of sleep and had him clearing human waste with his bare hands.

Mr Miller argued that what happened to Mr Darbi did not meet the legal definition of torture. Even if it did, he said, the prisoner’s statements to FBI interrogators were admissible at the judge’s discretion under the Military Commissions Act.

Justice Department lawyers rejected that position in higher court proceedings, saying a policy of the Biden administration ruled out the use of evidence obtained through torture in the case.

The judge, Colonel Lanny J. Acosta Jr., later rejected use of what Mr. Darbi told his interrogators about the trial in 2002. “Admission of such evidence could greatly undermine the actual and apparent fairness of the criminal proceedings against an accused by tainting a trial with unfairness sufficient to turn a resulting conviction into a denial of a fair trial,” he wrote in June. .

The judge left open the possibility that evidence obtained by investigators based on things they learned during that interrogation could be used during the trial.

A dispute over the use of testimony obtained through torture first arose in the Cole case during the final months of the Trump administration, when prosecutors submitted a legal file containing information Mr Nashiri had told the interrogators of the Trump administration. CIA on a black site. Defense lawyers asked the judge to dismiss the application and said the secret trial record made it clear that Mr Nashiri made the statements while he was being tortured.

Instead, Colonel Acosta ruled that in certain circumstances a judge, but not a military jury, could consider evidence obtained through cruel, inhuman or even torture tactics. The Biden administration declined to defend that position, declaring as a policy that no torture evidence would be used in the Guantánamo trials.