A military court at Guantanamo Bay sentenced two detainees to 23 years in prison Friday for conspiracy in the 2002 terrorist bombing that killed 202 people in Bali, Indonesia. But the men could be freed by 2029 with a secret plea deal and with credit for their convictions.
Mohamed Fariq Bin Amin and Mohamed Nazir Bin Lepp, both Malaysians, have been held by the United States since the summer of 2003, beginning with three years in CIA black prisons where they were tortured. Last week they pleaded guilty to war crimes.
About a dozen relatives of tourists killed in the attacks spent an emotional week in court testifying to their ongoing grief. A jury of five U.S. military officers assembled to decide a sentence of 20 to 25 years returned 23 years after deliberating for about two hours Friday.
But, unknown to jurors, a senior Pentagon official struck a secret deal over the summer with the defendants that they would be sentenced to a maximum of six more years. In exchange for the reduced sentence, they were asked to give evidence that could be used in the trial of an Indonesian prisoner known as Habali, who is accused of masterminding the Bali bombings and other plots as the leader of the Qaeda affiliate Jemaah Islamiyah .
Then, separately, the judge, Lt. Col. Wesley A. Braun, cut 311 days from Mr. Bin Amin’s sentence and 379 days from Bin Lep’s because prosecutors missed court deadlines to turn over evidence to defense lawyers as they were preparing their case.
But the men could go home earlier. “The pretrial agreement contemplates the possibility of repatriation before the sentence is completed,” said Brian Bouffard, Mr. Bin Lep’s lawyer. When they are returned, he added, it will be for Malaysia’s state deradicalization program and a lifetime of monitoring by national security authorities.
It took so long to bring the men to trial, in part, because of the time they spent in the CIA’s secret prison network overseas, where detainees were tortured during interrogations. Even after they agreed to plead guilty to their crimes and cooperate with prosecutors, the legacy of torture overshadowed the proceedings.
Christine A. Funk, a defense lawyer, showed Mr. Bin Amin’s drawings of his torture on a screen in the courtroom as she described him as a damaged man who at the time of his arrest in Thailand cooperated with the authorities. In addition to his three years at CIA black sites, he said, he spent his first 10 years at Guantanamo Bay in solitary confinement.
“Upon his arrival at the black sites, he was immediately tortured,” he said. “He was not questioned immediately. He was immediately tortured.”
He cited federal and congressional investigations that confirmed he was kept naked in solitary confinement while tied in painful positions, had water poured down his nose and throat and was forced to squat with a broom behind his knees. Each situation was depicted with a drawing that is now evidence in the case.
“This is, frankly, un-American,” he said. “We are not who we are. But that’s what we did.”
The attorney general, Col. George C. Kraehe, said the real victims of torture were the families of the dead, “who have been rendered for their whole lives terrified, terrified, deprived of their precious loved ones, who were robbed of them by the barbaric acts of the accused.”
“Our task here is not to bring justice to the accused,” Colonel Kraehe said. “Our duty here is to bring justice to the victims.”
He defended the CIA’s interrogation program as a product of the time, “at the beginning of the war on terror, when the United States sought to defend itself and the world from forces that had savagely attacked the United States, killing thousands of innocents, forces that had attacked other countries, forces trying to destroy the American way of life. This war continues to this day.”
After all, he said, the defendants “left this program about 18 years ago.”
Mr. Bin Lep was also tortured, Mr. Bouffard said. But he decided to forgive those who did it and move on.
Both defense lawyers and prosecutors gave jurors a lesson on conspiracy as a war crime and explained that the men became accessories to the Bali bombings by training with al Qaeda in Afghanistan before the attacks and helping the attackers evade capture after.
Mr. Bin Lep “may not have planned the bombings, he may not have carried them out, he may not have known when and where,” Mr. Bouffard said. “But it helped the people who did.”
The chief defense counsel for the military commissions, Tax. Gen. Jackie L. Thompson Jr., issued a statement lamenting how long it took to bring the men to trial. He said the US decision after 9/11 to establish the CIA’s interrogation program “frustrated everyone’s desire for accountability and justice”.
