GUANTANAMO BAY NAVAL BASE, Cuba _ The trial judge in the Sept. 11, 2001, terrorist attacks case has ruled that he and the prosecution did nothing wrong in authorizing the destruction of a former CIA "black site" prison without advance notice to defense attorneys.
The ruling was not available on the Pentagon war court website, which posts court filings three or more weeks later after intelligence analysts examine the documents and decide what, if anything, the public cannot see.
But three attorneys who saw the black-site ruling said the judge, Army Col James L. Pohl, rejected a request that he step down, remove prosecutors or provide other remedies for an episode in which prosecutors secretly and unilaterally obtained permission from the judge to "decommission" a former CIA prison without notice to defense attorneys.
Court filings and in-court presentations showed the judge, through the prosecution, authorized the CIA to dismantle the overseas site _ in a nation that has never been identified publicly _when Pohl had a protection order on any surviving remnants of the overseas prison network. However, prosecutors using their national security powers got permission from the judge to give the defense attorneys photographs and some sort of 3D diagram as a substitute for the real thing.
The destroyed site was a rare remaining outpost in the CIA's worldwide network of secret prisons.
There, from 2002 to 2006, agents kept their captives naked, or in diapers, waterboarded some, rectally abused others, and used cramped confinement boxes and hot and cold temperatures to break the men in their pursuit of al-Qaida secrets _ techniques that the Senate Torture Report mostly described as ineffective.
The judge wrote that defense attorneys failed to show that "the physical evidence is of such central importance to an issue that is essential to a fair trial, or that there is no adequate substitute for the physical evidence."
Pohl issued the ruling Friday, eight hours before the government shut down.
Defense lawyers argued that with advance notice of a plan to destroy the site, they would have asked a federal judge to stop the destruction. Pohl denied their request to call witnesses to demonstrate the quality of evidence that was lost, and explain to the judge that defense lawyers have an ethical obligation to investigate at the site itself _ a form of pretrial preparation prosecutors say is forbidden in the death-penalty case.
