The judge in the death-penalty trial of those accused of carrying out the Sept. 11, 2001, terror attacks in the U.S. has ruled that prosecutors may not use key FBI interrogations conducted at the Guantánamo detention center soon after years of CIA black site abuse ended.
Under the war court system, confessions must be voluntary. So prosecutors had already pledged not to use what the captives told their CIA interrogators during their years of secret spy agency custody that included torture. Instead, as a substitute, prosecutors had planned to have FBI agents describe what the suspects told them soon after their September 2006 transfers to Guantánamo in supposedly consensual interviews.
But the judge, Army Col. James L. Pohl, excluded the FBI interviews, known as “clean team statements,” from trial in a 36-page ruling.
“Protective Order #4 will not allow the defense to develop the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in CIA custody the defense alleges constituted coercion,” Pohl wrote in the ruling issued Friday and obtained by McClatchy.
“In order to provide the defense with substantially the same ability to make a defense as would discovery of or access to the specific classified information, the government will not be permitted introduce any FBI Clean Team Statement from any of the accused for any purpose.”
Defense attorneys, who have top-secret security clearances, argued that the prosecutors’ cascading restrictions and threats over trying to find and question potential witnesses of their clients’ torture, notably CIA agents, deprived the accused 9/11 plotter Khalid Sheik Mohammed and four alleged accomplices of a fair trial.
Prosecutors countered that restrictions on defense attorneys were a national security necessity — and that the U.S. government had given defense lawyers enough CIA-screened and redacted documents or court-approved substitutions of actual evidence about the black sites, to let them try to get the Guantánamo interrogations excluded.
To defend prohibitions on defense investigations, chief prosecutor Army Brig. Gen. Mark Martins told the judge in a Jan. 11 hearing: “The mere seeking of interviews with people — and wandering up and ambushing people at the Piggly Wiggly — is a serious thing.”
The accused plotters were brought to Guantánamo after three and four years of secret detention in the CIA’s secret overseas prison network. There, to get them to spill al-Qaida secrets, CIA agents subjected them to a program of “learned helplessness.” They slammed their captives’ heads into walls, strung them up in painful shackled positions, deprived them of sleep, kept them nude or in diapers, subjected them to dietary manipulation and rectal abuse. Mohammed was water boarded 183 times.
FBI agents, taking some directive by the CIA, questioned the five men in their first months at Guantánamo before they were allowed to see lawyers.
Defense lawyers had begun to argue that the alleged 9/11 plotters were so systematically broken, that what they told the FBI agents were programmed responses, lacking free will to say anything else.
But Pohl did not specifically rule on the issue of whether the FBI interviews were contaminated by the CIA abuse.
Instead, he found that the screened evidence Martins and his prosecutors gave defense lawyers did not provide enough details about the CIA period to let the defense effectively argue for suppression of the FBI interviews. So Pohl suppressed them.
In the same ruling, however, Pohl he agreed with prosecutors that the defense attorneys could be deprived of some graphic details of what went on in the black sites. So he found that, if the men are eventually convicted, prosecutors have given the defense attorneys enough information about what the CIA did to the alleged terrorists to argue against the death penalty.
“It’s a classic Pohl split-the-baby decision,” defense attorney Jay Connell said Saturday.
Defense lawyers say that, if there is a conviction, they need the now-withheld details as mitigation evidence to argue against the death penalty for their clients. The lurid details now withheld by national security invocations would be used to argue that the United States lost the moral authority to execute the men, or to argue that they are so thoroughly broken they are no longer a danger to anybody.
“This suppression was not because of torture 15 years ago. This was based on coverup of torture right now,” Connell said.
A centerpiece of the trial was to be FBI agents describing what the five alleged plotters told them within months of their transfer to Guantánamo about their alleged roles in conspiring with the 19 terrorists who hijacked four airlines on Sept. 11, 2001 — and then killed 2,976 people by slamming two planes into New York’s World Trade Center and one into the Pentagon. The fourth crashed in a Pennsylvania field, presumably en route to Washington.
Now the prosecution may need to mount a case based on documents rather than declarations. The FBI agents can testify about documents agents seized in Pakistan and Afghanistan, money transfers from the United Arab Emirates and a manifesto of sorts called The Islamic Response that the five men supposedly crafted during the Bush administration, justifying the 9/11 attacks.
Prosecutors have 10 days to decide whether to appeal to the U.S. Court of Military Commissions Review, which can direct Pohl to reinstate the evidence. Such an appeal would likely force cancellation of the next round of pretrial hearings scheduled to take place at Guantánamo Sept. 10-14.
President George W. Bush announced Sept. 6, 2006 that the five alleged plotters were among former black site prisoners who were brought to Guantánamo for trial. Since then, the Pentagon, Congress and the courts have been weighing in on how to hold a trial by military commission of alleged terrorists who were disappeared into spy agency custody and deprived of defense lawyers and International Red Cross contact for years.
The Sept. 11 case has no trial date. The five men were initially charged in June 2008 but then arraigned in May 2012 in this version of the war court.