ARUN RATH, HOST:
The release this past week of the Senate report on abusive interrogation techniques used after 9/11 raised a lot of questions. Here's one you might not have considered - what does this report mean for the ongoing prosecution of Guantanamo Bay detainees? In 2003, Lieutenant Colonel Stuart Couch was assigned to Guantanamo as a prosecutor, but he quit after coming face-to-face with the abuse there. One of the men he was supposed to prosecute still hasn't had his day in court - Mohamedou Slahi.
STUART COUCH: He was subjected to forced nudity, to isolation, to changes in his temperature, both too hot and too cold. There were various ruses to have him believe that his mother and brother had been taken captive by the United States and would be harmed in the future. He was also subjected to physical abuse.
RATH: Stuart Couch left Guantanamo partly because that abuse offended him as a Christian, but also because those techniques may have ruined any chance to secure a conviction or a proper sentence for those detainees.
COUCH: It makes the job of the prosecutor more difficult from two perspectives. First, if the methods constitute torture, then there are prescriptions under the law, specifically under the United Nations convention against torture in Article 15. Along with that is a problem with that kind of evidence from a perspective of credibility.
The other legal problem for a prosecutor would be if the techniques to obtain the statements was so abhorrent that it could affect what sentence, ultimately, a court will allow to be meted out. That is the primary problem I see it going forward for the military commissions in Guantanamo.
RATH: Let's talk about the big trial at Guantanamo. This is the trial of the 9/11 defendants, Khalid Sheikh Mohammed, the alleged mastermind of the attack. Those defense lawyers have been trying to get a hold of details about KSM - about Khalid Sheikh Mohammed's torture in custody. Now it's on the public record. So how does that affect the case?
COUCH: I evaluated the evidence against Khalid Sheikh Mohammed and I wrote a memorandum on it. He can be prosecuted with evidence that was not derived from any of his interrogations. I was of the opinion he can be convicted based upon evidence that we knew about him, statements that he had made to others before he was captured and detained by the United States.
The more difficult issue, as I see it, is, assuming these individuals like KSM are convicted, and again assuming that they are subject to the death penalty, is a court - a reviewing court, or even up to the Supreme Court - is it going to allow for the fact that the United States is going to be able to execute an individual that, presumably, they tortured? Is it going to allow that? And that's what's hanging in the balance, and I think that that's the ultimate effect of this policy that was unforeseen when it was enacted.
RATH: Since you left the military commissions, they've been reformed and the head prosecutor says they will not be using information derived from torture and making the case against the accused 9/11 conspirators. Do you think you could comfortably serve as a prosecutor in Guantanamo now after they fixed the problems that caused your moral and legal qualms?
COUCH: While I still have my reservations about the effectiveness and the efficiency of the military commissions, from a perspective of - would I be able to prosecute under the current set of rules? I believe I could. That being, I'm confident that all of the trial participants now are going to comply with the current rules that prohibit the use of evidence derived from torture or cruel treatment from being admitted at trial.
RATH: Stuart Couch is a retired Lieutenant Colonel who was a prosecutor at Guantanamo Bay. He is currently a civilian judge. Colonel Couch, thanks very much for talking with us.
COUCH: Thank you. Transcript provided by NPR, Copyright NPR.