RENEE MONTAGNE, HOST:
The trial of Guantanamo Bay detainees has been roiled by a dispute over destruction of evidence, not evidence related to the death of Americans in the 9/11 attack, but rather evidence related to the torture of the men accused of orchestrating that attack. From the war court at Guantanamo, NPR's Arun Rath reports.
ARUN RATH, BYLINE: Defense lawyers in the 9/11 trial want to talk about torture for a simple reason, it could save their clients' lives. Assuming the men are convicted, their abuse in custody could constitute outrageous conduct by the government, a solid legal argument against execution. So when it comes to the CIA's rendition, detention and interrogation program, the defense wants as much detail as they can get.
MARK MARTINS: You're entitled to the information. If you have a legally cognizable defense, you want to rebut the prosecution's case or do you want to make a sentencing argument?
RATH: That's Brigadier General Mark Martins, lead prosecutor in the 9/11 trial. By the rules of military commission, the prosecution is actually in charge of providing that information to the defense. It gets complicated, though, because many of the details of the CIA program are still classified. So the defense can't get everything they want.
MARTINS: We can delete withhold. We can make a recommendation to the judge, accept a - substitute in a statement admitting relevant facts. And this enables us to protect a lot of information that really does continue to protect sources and methods.
RATH: James Connell is a lawyer for defendant Ammar al-Baluchi.
JAMES CONNELL: From the beginning, the government has claimed that actual interrogation methods, the so-called enhanced interrogation methods, are sources and methods.
RATH: In 2013, the judge in the case approved a defense motion to preserve evidence from remaining detention facilities including the CIA black sites where detainees, including the accused, were tortured. But earlier this year, Connell and the other defense attorneys discovered that the government had destroyed one of the sites.
CONNELL: I mean, the defense had every reason to believe that the judge's public order was being complied with when, in fact, the government secretly sought destruction without notice to the defense.
RATH: The prosecution claims the failure to notify the defense was simply an oversight. They have offered a substitution for the evidence, photographs and written descriptions. But defense attorneys say that's not enough. Walter Ruiz, lawyer for defendant Mustafa al-Hawsawi, offered one example to illustrate why.
WALTER RUIZ: Mr. Mustafa al-Hawsawi had, at one point, been the victim of walling where they're thrown up against the wall with a horse collar. And what the document says is that the wall was a flexible wall that he was thrown into. So there's no way you can really corroborate that by looking at a photograph or a picture.
RATH: The defense team for admitted 9/11 mastermind Khalid Sheikh Mohammed filed a motion asking the prosecution and judge to step down over the destruction of evidence, accusing them of shocking indifference to Mr. Mohammed's rights. The prosecution, in turn, accuses the defense of pursuing a cynical, scorched-earth strategy, attacking and litigating every possible thing imaginable in an effort to prevent the case from ever being tried.
What is clear after more than four years of pre-trial hearings is that the defense teams will do whatever they can to keep their clients alive. James Harrington is the lead attorney for defendant Ramzi Binalshibh.
JAMES HARRINGTON: The easiest way to move this case along would be to take the death penalty off the table. And you would stop it from being a capital case with everything that's associated with capital litigation. And this case would move very, very quickly.
RATH: There has been no indication that the prosecution is considering taking the death penalty off the table for the biggest mass murder trial in United States history. Arun Rath, NPR News, Guantanamo Bay, Cuba. Transcript provided by NPR, Copyright NPR.