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Prosecutors preparing for the military commissions always expected defense lawyers for accused terrorists to raise claims of torture or mistreatment at trial. What they didn’t count on was anyone believing them. Then came irrefutable evidence. The release of photos taken at Abu Ghraib depicting abuse of prisoners by U.S. troops changed everything. But months before the public airing of those photos shocked the world in April 2004, the Pentagon’s prosecution team had credible evidence that detainees had suffered abuse while in U.S. custody. According to an April 2004 report from the Defense Department inspector general and internal DOD e-mails obtained by Legal Times, two prosecutors traveled to Panama City, Fla., in January 2004 to question a suspect. During their trip, Clayton Trivett Jr. and Karunesh Khanna had dinner with two agents from the Federal Bureau of Investigation who had been stationed at Bagram Air Force base in 2002. The lawyers later told Pentagon investigators that one of the FBI agents claimed to have witnessed anal-cavity searches being performed on detainees by an individual who didn’t seem to be a doctor. The agent recounted how he had observed detainees who appeared to be in pain leaving the area with fecal matter running down their legs. The agents said the man conducting the exams aroused suspicion when he asked to have his photo taken with one of the prisoners. According to the report, Trivett and Khanna discussed whether they should disclose the abuse allegations to more senior lawyers in the military commission office. They considered that doing so could get the FBI agents in trouble and potentially hurt their team’s relationship with the bureau. According to statements given by several other lawyers in the office, the information was shared almost immediately with three senior members of the prosecution team: Scott Lang, Kurt Brubaker, and Stuart Couch. Those lawyers did not report it. About a month later, Army Col. Frederic Borch III, who served as chief prosecutor from 2003 to 2004, was informed of the allegations and reported them to Army investigators. The inspector general report concluded that the conduct of the lawyers did not constitute criminal or ethical misconduct. Still, the incident apparently exacerbated rifts between the five lawyers who participated in the decision not to report the abuse allegations and some of their colleagues in the office. In a March 15, 2004, e-mail to Borch, Air Force attorney John Carr cited the episode as evidence that an “environment of secrecy, deceit and dishonesty” was “allowed to flourish” within the prosecution team. Firing back in an e-mail, Borch called those charges “monstrous lies.”
Vanessa Blum can be contacted at [email protected].

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