U.S. Says It Will Preserve Secret Jails for Terror Case

[The Watchmen]

Written by Benjamin Weser and Scott Shane for The New York Times

The government will agree to preserve the secret overseas sites where a defendant in a terror case was once held and, his lawyers say, subjected to harsh interrogation techniques after his capture in 2004, a prosecutor indicated in court in New York on Thursday.

Lawyers for the defendant, Ahmed Khalfan Ghailani, told a judge this week that they were afraid that the so-called black sites, which were run by the Central Intelligence Agency, would be demolished as the agency has said it will discontinue their use.

Mr. Ghailani, who was ordered by President Obama to be tried in civilian court, spent up to two years in the black sites before he was moved to the naval base at Guantánamo Bay, Cuba.

He has been charged with participating in a conspiracy that included the 1998 bombings of the United States Embassies in Kenya and Tanzania, attacks organized by Al Qaeda which killed 224 people and wounded thousands.

Prosecutors have charged that Mr. Ghailani, a Tanzanian believed to be in his mid-30s, helped obtain explosives and a truck and assisted with other logistics in the Tanzanian bombing.

He became a fugitive after the attacks, and later was a bodyguard and cook for Osama bin Laden, the military has said. He has pleaded not guilty.

The case has been seen as a test of President Obama’s goal to close Guantánamo and try terrorism suspects in the federal courts “whenever feasible.”

On Thursday, the judge, Lewis A. Kaplan of Federal District Court in Manhattan, making clear that he wanted the case to move expeditiously, set a trial date of Sept. 13, 2010.

“There’s a public interest in seeing justice done here,” Judge Kaplan said.

The prosecutor, David Raskin, chief of the terrorism and national security unit in the United States attorney’s office in Manhattan, also told the judge that the government would not use any statements Mr. Ghailani may have made “while he was in custody of other government agencies,” an obvious reference to his detention in the black sites and at Guantánamo.

The agency has never confirmed the locations or other details of the secret prisons, and a C.I.A. spokesman on Thursday declined to comment on the prosecutor’s statement in court. Prosecutors also declined to comment after the hearing.

It is unclear exactly what would be involved in preserving the secret sites for court cases, and it is possible that some sites may already have been demolished, stripped of equipment or altered for reuse.

In asking that the sites be preserved, Mr. Ghailani’s lawyers said they wanted to inspect them as part of their investigation into what had happened to Mr. Ghailani during his detention.

“It appears undeniable,” one lawyer, Peter E. Quijano, wrote, “that the defendant was subjected to harsh conditions and harsh interrogation techniques while detained in C.I.A. ‘black sites.’ ”

The lawyers said that they wanted to present “a detailed and accurate representation of the physical sites” where Mr. Ghailani was held as mitigating evidence against the death penalty if it is sought in his case.

Mr. Raskin at first suggested that the government would have to respond at least in part with classified information. But Judge Kaplan asked why prosecutors could not simply agree to the defense’s request that the government “preserve certain things,” as the judge put it.

“We will do that," Mr. Raskin said, adding that prosecutors should be able to resolve the issue with defense lawyers.

If they are unable to do so, the judge said, prosecutors should file their response to the defense.

The C.I.A.’s secret jails were created starting in 2002, after President George W. Bush assigned the agency responsibility for questioning high-level members of Al Qaeda. Working with friendly foreign intelligence services, the C.I.A. built or renovated buildings in several countries, including Afghanistan, Thailand and Poland, according to former agency officials.

After the location of the prisons in Eastern Europe was revealed in late 2005, C.I.A. officials scrambled to move the prisoners to other, still-secret places. It is not known where Mr. Ghailani was held, but it appears that many prisoners were held in more than one place at different times.

It was also revealed in court that the Justice Department has told Judge Kaplan that it was not prepared to rule out seeking the death penalty at this time in the case. The Defense Department had decided not to seek it when Mr. Ghailani was in the military commission system.