Torture by U.S. Was Key Issue in Bali Bombing Plea Deal

Prosecutors told relatives of victims of the 2002 bombings in Bali, Indonesia, that the U.S. government made a plea deal with two Malaysian prisoners to try to disentangle the legacy of torture from the eventual trial of the prisoner they accuse of being the mastermind of the Al Qaeda-linked attacks.

The two Malaysians provided secret testimony at the time of their sentencing last month. Depending on what they said, their testimony could be used against the man accused of being the mastermind, an Indonesian prisoner known as Hambali, in an effort to avoid lengthy litigation over whether earlier evidence was voluntarily obtained.

The legacy of torture has complicated prosecutors’ efforts to hold trials in the better known Sept. 11 and U.S.S. Cole bombing cases at Guantánamo.

Like the terrorism suspects in those cases, the Bali bombing defendants were held nude in dungeonlike conditions, deprived of sleep through painful shackling and subjected to a technique that resembled waterboarding during their 2003 to 2006 detention in C.I.A. prisons. They were kept in solitary confinement. All of it has been fodder for defense lawyers trying to discredit evidence prosecutors hope to use at the war crimes trials.

The plea deal emerged last month in two weeks of slowly unfolding proceedings at Guantánamo Bay. Prosecutors brought family members from Europe and the United States to testify to their grief. A military jury then sentenced the two defendants, Mohammed Farik Bin Amin and Mohammed Nazir Bin Lep, to 23 more years in prison.

But, separately, the military judge, Col. Wesley A. Braun, disclosed a two-step reduction in their sentence and a recommendation for repatriation that could ultimately mean they return home this year.

The agreement surprised and angered some friends and family of the 202 people who were killed in the attack, on Oct. 12, 2002.

Jan Iaczynski of Melbourne, Australia, was at a pub in Bali before the explosions but lost five friends that night. He followed the proceedings at Guantánamo through social media and transcripts sometimes posted by the Pentagon.

Mr. Iaczynski called the sentencing hearing “a sham trial” that provided less transparency than early trials of perpetrators in Southeast Asia, some of whom were convicted and executed long ago.

But families who were brought to the base as witnesses said prosecutors had prepared them for disappointment.

Matthew Arnold of Birmingham, England, said the prosecutors said the plea deal was necessary “to bring a viable prosecution against Hambali.” Mr. Arnold’s brother, Timothy, was killed in the bombing while visiting Bali for a rugby tournament.

He described the strategy, as conveyed by the prosecution, as essentially using the Malaysians as “sacrificial lambs for the bigger fish”: Mr. Hambali.

Col. George C. Kraehe, a senior prosecutor, “told us he was disappointed,” said Mary Panagoulas, whose 27-year-old brother, Dimitri, a Greek-Swedish citizen, was killed in Bali. But the prosecutor also advised that testimony taken from the Malaysians in the plea deal would “help the Hambali case.” Colonel Kraehe declined to comment.

Susanna Miller, whose brother Dan, a British citizen, was killed, said prosecutors told family members about the deals “as a kindness” before a judge made it public. She described the agreement as necessary to “cleanse” the case of evidence obtained through torture.

The three men have been held by the United States since they were captured in the summer of 2003 in Thailand. But the U.S. government waited until 2021 to bring them before a court, and prosecutors have struggled to prepare evidence for the trial.

A month after Mr. Hambali was captured, according to a C.I.A. cable, an American interrogator told him that he “would never go to court because ‘we can never let the world know what I have done to you.’”

Mr. Hambali’s lawyer, James R. Hodes, declined to discuss what was done to his client but called the prosecution’s approach preposterous. “Torture can never be cleansed,” Mr. Hodes said. “The idea that a deposition could somehow cleanse torture derived evidence is repugnant to our democratic foundations and the rule of law.”

Before the Malaysians testified last month, the judge threw out charges that accused them of conspiring with Mr. Hambali in other deadly plots, making it unclear how their testimony might be helpful.

In their guilty pleas, the Malaysians said they had no personal knowledge of any role Mr. Hambali might have had in the Bali bombings. “I didn’t know anything about the Bali bombing until after it happened,” Mr. Bin Amin told the jury. Prosecutors did not challenge him on that.

Both men said they learned from news articles that Mr. Hambali, whose full name is Encep Nurjaman, was sought as the suspected mastermind. They described their part in the conspiracy as helping him elude capture and helping to move cash that benefited other perpetrators.

The judge has not set a trial date as the government continues to prepare secret evidence for the court to review.

The prosecutors missed so many deadlines to share evidence with the court and defense teams that, late last year, the judge began issuing sentencing credit against any potential conviction. It is not known how that credit would be applied to Mr. Hambali if he were sentenced to life in prison, the maximum punishment in his case.

For the families who testified, the focus is now the Hambali trial. Prosecutors have said it would not begin before next year.

Ms. Miller plans to bring her mother from England to testify. Ms. Panagoulas wants her parents to travel to Guantánamo from their home in Athens.

She described complicated views about the government’s use of torture. “Some victim families were comforted to know that they were tortured, not just our families were tortured,” she said, describing her brother Dimitri’s terrible death.

The bombing burned at least 85 percent of his body. He was airlifted a thousand miles from Bali to Darwin, Australia, for care but died two days after the attack.