Who has more info: Guantanamo lawyers or Hollywood?
By CAROL ROSENBERG | The Miami Herald | Published: August 31, 2013
Defense lawyers at the Guantanamo war court are turning the adage that art imitates life on its head with a legal motion that argues the makers of Zero Dark Thirty know more about what the CIA did to an accused Sept. 11 conspirator than the defendant's lawyers do.
In a 418-page legal filing, lawyers for Ammar al Baluchi seek government documents on how CIA interrogators and other U.S. officials helped director Kathryn Bigelow and screenwriter Mark Boal prepare the first 20 minutes of the film. In it, interrogators waterboard, strip naked and string up on a rope a man named "Ammar" who is described as the nephew of the 9/11 mastermind who helped finance the Sept. 11 hijackers.
Prosecutors oppose the effort as irrelevant to the defense of Baluchi -- nephew of alleged 9/11 architect Khalid Sheik Mohammed -- who is accused of helping finance the hijackers in a case that seeks his execution.
At issue in the latest transparency challenge at the war court is what CIA agents told Bigelow and Boal as they were making the 2012 docudrama on the U.S. raid that killed Osama bin Laden in Abbottabad, Pakistan.
Emails and documents surfaced by Judicial Watch and Gawker in Freedom of Information filings show an agency and Pentagon eager to participate in the effort -- even providing the filmmakers four CIA officers to brief them in the summer of 2011.
"Nothing to comment," screenwriter Boal said in a short email to the Miami Herald on Friday. "But good luck with the piece."
Baluchi's attorneys Jay Connell and Air Force Lt. Col. Sterling Thomas, both on the case because they have top-secret security clearances, want the war court judge to order the government to furnish them with uncensored correspondence between the filmmakers and U.S. officials, including interrogators' names. They want to read an unredacted version of an internal CIA memo that talks about "an interrogation of a character who is modeled after Ammar al Baluchi" -- in which the agency sought changes.
"The United States has provided more information to the filmmakers of Zero Dark Thirty about Mr. al Baluchi's treatment in CIA custody than it has to his defense counsel," they argue. Although those lawyers months ago signed an agreement to safeguard national security secrets, "the prosecution has provided no information about Mr. al Baluchi's rendition, detention, and interrogation."
The unusual detour through a Hollywood production is just the latest effort by attorneys to shine a light on what happened to the alleged 9/11 conspirators before they got to Guantanamo in 2006. The CIA has acknowledged that it waterboarded Mohammed 183 times, among other interrogation tactics portrayed in the movie. But nothing has ever surfaced on what was done to his nephew, who sits four rows behind him at the war court as a co-defendant in the case alleging five men conspired to direct, train and fund the hijackers who killed nearly 3,000 people on Sept. 11, 2001.
Prosecutors have consistently argued that the CIA treatment is not relevant at the trial. The war court forbids from trial the use of information gained through tortured interrogations.
Defense lawyers argue they need to know what the CIA did to their clients as they carve out a defense for a capital murder trial like no other.
First, despite prosecution pledges not to bring to court any information gained through torture, the defense lawyers don't trust them. They want to be able to analyze evidence supposedly produced by so-called FBI clean teams years after the brutal interrogations portrayed in the Hollywood movie. Plus, they argue that mistreatment is a mitigating factor that should ultimately spare their clients the death penalty.
And that starts with transparency, if not for the public then for the lawyers.
The defense lawyers' July 31 Zero Dark Thirty filing was released Aug. 27 by the Pentagon with about 100 pages blacked out.
The prosecutors' objections, filed Aug. 23, were still under seal Friday while intelligence agents scrubbed it of information the public is not allowed to see.
Attorneys for Baluchi, 36, also attached a DVD of the first 25 minutes of the film to the court filing.
Connell said he wants to screen it inside the maximum-security court for the judge, Army Col. James L. Pohl, when he gets to argue in court for the communications between the government and filmmakers.
In addition to being waterboarded, the Ammar character in the movie is also forced to wear a dog collar and is stuffed in a coffin-like box. Declassified and leaked abuse investigations have shown that U.S. agents used those so-called "enhanced interrogation techniques" to break the will of CIA prisoners after the 9/11 attacks. But none have ever been specifically tied to Baluchi.