National Security

Prosecutors: Excluded FBI interviews of alleged 9/11 plotters is their ‘best evidence’

At left, Army Brig. Gen. Mark Martins, the chief war crimes prosecutor, speaking to reporters at Guantánamo, in a May 2012 Miami Herald file photo. At right, the chief military commissions judge, Army Col. James L. Pohl, sitting in court at Guantánamo in a Pentagon handout photograph.
At left, Army Brig. Gen. Mark Martins, the chief war crimes prosecutor, speaking to reporters at Guantánamo, in a May 2012 Miami Herald file photo. At right, the chief military commissions judge, Army Col. James L. Pohl, sitting in court at Guantánamo in a Pentagon handout photograph.

Prosecutors in the case against the alleged plotters of the Sept. 11 terror attacks asked the judge to reconsider his ban on allowing FBI interrogations of the suspects at the trial, saying it was their most potent evidence.

“The statements made by the accused to the FBI constitute acknowledgments of guilt and responsibility for the largest act of terrorism in the history of the United States, which resulted in the deaths of 2,976 innocent people,” prosecutors wrote in the 81-page appeal filed Wednesday of last week’s order y Judge James L. Pohl excluding the FBI accounts of the interrogations.

“Each of the confessions is many pages in length, with each of the accused painting detailed accountings of the plot, their interactions with the hijackers and other co-conspirators, and their own specific participation in the offenses, despite the five accused being thousands of miles away at the culmination of the plot with the attacks of September 11, 2001.”

The decision by Pohl, an Army colonel, to suppress the interrogations had briefly presented the possibility of bringing the case to trial sooner. There is still no trial date.

Instead, the defense and prosecution could resume litigation over access to CIA agents and contractors involved in the imprisonment of accused 9/11 plotter Khalid Sheik Mohammed and his alleged accomplices in the spy agency’s secret prison network before their 2006 transfer to Guantánamo for trial.

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 in supposed consensual interviews that occurred soon after they arrived at Guantánamo.

In a surprise order last week, the judge said that to balance the government’s insistence on shielding the names of CIA agents from defense attorneys, he disqualified the subsequent FBI interrogations because the defense cannot get enough evidence to argue they are tainted.

Defense attorneys argued that they needed to obtain more graphic details, including CIA witness testimony of what went on during the accused plotters’ 2002-2006 time in CIA custody, to argue that the accused terrorists had been so thoroughly tortured they told the FBI what the CIA wanted them to say.

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In their appeal, the prosecutors cast the 2007 and 2008 interrogations at Guantánamo as their most powerful evidence in their case alleging Mohammed and the others conspired with the 19 men who hijacked four airplanes on Sept. 11, 2001, and crashed them into the World Trade Center, Pentagon and a Pennsylvania field.

“They have always held themselves to be dedicated jihadists proud of their roles in war crimes committed against their professed enemy,” prosecutors wrote.

They defended CIA policy of hiding clandestine service identities from the defense attorneys. The defense attorneys, like the judge and prosecutors have top secret security clearances and face criminal prosecution if they divulged classified information.

“The CIA, and the CIA personnel the defense seeks to interview, went to work on 12 September 2001 in an effort to take actions to prevent another similar attack against the United States. Their profession demands secrecy and a guardedness about their identities, and this is fully consistent with our national values,” they wrote.

The prosecutors also said the judge had an obligation to warn them that he was considering excluding the FBI interrogations, and that he could have crafted a less drastic sanction.

For example, they wrote, Pohl could have ordered CIA personnel whose names the defense attorneys aren’t allowed to know — and who have refused to speak with defense attorneys or only would do so by telephone — to testify at a hearing as a way of letting defense attorneys question them.

Moreover, with the hearings still in pretrial proceedings over access to classified evidence, defense attorneys had yet to formally file a legal motion asking the judge to exclude the FBI interrogations as involuntary.

So, the prosecutors wrote, the judge overstepped his authority by deciding to suppress the evidence “with no notice to the prosecution” using a sanction “not contemplated by the classified information procedures” in the law that created the post 9/11 war court.

“That’s nonsense,” Cheryl Bormann, attorney for alleged plot deputy Walid bin Attash, said Thursday. “The Military Commissions Act gives the judge the power to fashion remedies when there’s tension between national security issues and the defendant’s rights to a fair criminal trial.”

“A judge can go all the way up to dismissal,” she added. “Frankly, I think he should have dismissed the case.”

If Pohl does not reinstate the evidence, the prosecutors could next appeal to the U.S. Court of Military Commissions Review. The Pentagon panel, however, currently does not have enough conflict-free members to hear a 9/11 case appeal.

Carol Rosenberg: 305-376-3179, @carolrosenberg
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