Abd al Rahim al Nashiri is on trial at Guantanamo Bay as the alleged mastermind of the bombing of the U.S.S. Cole in 2000. If convicted, Nashiri could face execution. For now, the case remains mired in preliminary hearings likely to stretch on for at least another year. The legal regime at Guantanamo makes for convoluted proceedings, but the marquee cases – against Nashiri and the five men accused of plotting the 9/11 attacks – have also been complicated by the CIA’s use of torture. The government maintains that their evidence against Nashiri does not rely on statements obtained through torture, but his lawyers argue that his treatment is an indelible stain on the prosecution’s case. Guantanamo defense attorneys were given new ammunition this week with the Senate intelligence committee’s report on CIA interrogations. The report lays out in brutal detail how Nashiri was taken into CIA custody in 2002, brought to five different black sites, waterboarded three times, and subjected to mock executions with a drill held to his head. The report also accuses the CIA of “implying that his mother would be brought before him and sexually abused; blowing cigar smoke in al-Nashiri’s face; giving al-Nashiri a forced bath using a stiff brush; and using improvised stress positions that caused cuts and bruises resulting in the intervention of a medical officer, who was concerned that al-Nashiri’s shoulders would be dislocated using the stress positions.” Richard Kammen, one of Nashiri’s lawyers and a specialist in capital cases, told The Intercept that “the torture pervades everything.” He spoke to us about the Senate report and its impact on his client’s defense. This interview has been edited for clarity and condensed. The Intercept: Some of the details of Nashiri’s abuse – like the fact that he was subject to mock executions – had come out years ago. And you’ve had some access to classified details. What’s completely new to you from the Senate report? Kammen: What was completely new to us was the fact that within the CIA there were agents on the ground saying this shouldn’t be happening: “he’s told us everything, he’s compliant, he doesn’t have any more information.” And people higher up were saying, “we don’t care, keep the enhanced interrogation going.”

How do these details of his torture shape your defense? The government has said that they want to enter in the evidence a statement Nashiri provided to what they call the FBI “clean team.” Meaning the interrogators did not use brutal techniques to get that statement. So the prosecution wants to use what they believe to be an incriminating statement that did not result from torture. Yes. What we know happened is the CIA brought Nashiri to Guantanamo in September 2006 [editor’s note: when the CIA’s black site program was acknowledged by President Bush. The Senate report confirms that Nashiri had been held at Guantanamo before, in a black site there.] In January 2007, the FBI interviewed him for three or four days. It’s our view that that the statement he gave to the FBI is not voluntary. You can’t torture a guy for four years and then stop for six months and say, OK, let’s go with that. The other way in which it will effect the guilt/innocence piece is the government has now said they want to use hearsay from people in Yemen who were alleged conspirators in the case, which were in our view derived from statements made by Nashiri and others under torture. You’ve also argued that Nashiri suffers long-term mental damage from his time in CIA custody. The Senate report notes that as far back as 2003, some CIA psychologists diagnosed him with anxiety and “’major depressive’ disorder.” This spring we asked that the proceedings be stopped until he receives adequate medical care, and we’ll review that in light of Senate report. The medical care he’s been getting in Gitmo is totally inadequate for someone who suffers from chronic and complex PTSD. We’ve asked that he be provided with an MRI exam to see if he suffers from brain damage. There is no MRI machine in Gitmo. We learned that there was suppose to be one coming and then they mysteriously took it somewhere else after we asked for it – [the Miami Herald’s] Carol Rosenberg wrote about it. Supposing he has organic brain damage? There are questions of whether the case can even go forward. And if he is convicted, he could face the death penalty. How does his torture factor into the penalty phase of trial? Anything that would constitute a reason for the jury not to kill the defendant is considered mitigating evidence. For example, in the Senate report, they talk about how the chief interrogator was saying, “If we continue to torture Nashiri he’s going to suffer permanent mental injury.”