A Sept. 11 trial prosecutor on Thursday read aloud ghastly descriptions of what the CIA did to its prisoners: An alleged plot mastermind was taken nude from interrogation to a medical officer, who put fluids up his rectum then returned him nude to interrogation. Some captives were kept like “cowering dogs,” subjected to standing sleep deprivation, abdominal and facial slaps, in what one CIA agent called a “nightmare.”
Prosecutor Jeffrey Groharing read the descriptions from various material his team had provided defense attorneys in a bid to get a new 9/11 trial judge, Marine Col. Keith Parrella, to restore the FBI interrogations of the alleged plotters that Parrella’s predecessor had excluded from the trial.
In August, the original trial judge, Army Col. James L. Pohl, suppressed the information about the interrogations by FBI agents because prosecutors had blocked defense lawyers from speaking to CIA witnesses. Defense lawyers wanted a graphic description of black-site abuse to argue that the 2007 FBI interrogations at Guantánamo were tainted by the earlier torture.
Without independent defense-team investigation, Pohl found, the defense lawyers would not have enough evidence to argue exclusion of the interrogations of alleged mastermind Khalid Sheik Mohammed and four other defendants at Guantanamo in 2007. So he suppressed them. Then Pohl handed off the case to Parrella and retired from 38 years in the military.
“The CIA is not on trial,” Groharing told Parrella on Thursday. This is the trial, he said, of the five men accused of plotting the mass murder by hijacking of nearly 3,000 people in New York, Pennsylvania and at the Pentagon on Sept. 11, 2001. The CIA held them incommunicado and subjected them to cruel treatment from 2002 and 2003 to their transfer to Guantanamo in September 2006.
They were arraigned May 5, 2012 under an Obama-era format for military commissions that forbids the use of tortured or coerced interrogations from the military commissions. The case has been in pretrial hearings, often arguing over access to evidence, ever since. No trial date has been set.
“It’s really not a secret what happened to the accused in CIA custody. It’s a matter of how it’s shaded or flavored, if you will,” Groharing said. He argued that defense lawyers have enough prosecution-furnished, CIA and judicially approved summaries of what occured in the black site prison network to defend the men in the death-penalty case.
Groharing offered the most lurid, detailed descriptions of what was inflicted upon the captive, known as KSM, yet uttered in the war court. But Mohammed’s death-penalty defender, David Nevin, said they were insufficient for a fair trial.
A description of a 15-hour interrogation was condensed to a page-and-a-half summary, Nevin said. He offered an example: The prosecution provided evidence that Mohammed was “rectally rehydrated,” he said, but doesn’t describe how it was done. “Does somebody hold his legs apart? Is he naked? Was lubrication involved? How did they do it?”
Defense lawyers for the men who went missing in CIA detention from 2002 and 2003 to 2006 want even more exacting eyewitness testimony. They want to argue that the United States has lost the moral authority to execute the alleged 9/11 conspirators, if convicted.
“My imagination fails when it comes to how badly these men were treated … in this dungeon they created,” said attorney Jay Connell, representing Mohammed’s nephew Ammar al Baluchi. He said it was unimaginable, before this week’s revelation that CIA agents considered using “truth serum” in their secret prison network.
Connell said the so-called vivid descriptions offered by the prosecution were woefully inadequate and shouldn’t substitute for evidence provided by actual eyewitnesses and original CIA cables.
“Where did they hit him? In the head? In the stomach? In the scrotum? What kind of sounds does he make? Does he flinch? Does he wince? Does he cough? Does he beg?,” Connell said. “Is he gaunt? Is he starving? Is steam coming of his body when they douse him in cold water?
“What does it look like when a person is so humiliated.? Do they cry? Do they whimper? That’s the kind of information that is a rich and vivid account.”
The prosecutor had earlier invoked quotes from anonymous CIA black-site eyewitnesses who said they were “ashamed,” saw a “nightmare” and observed detainees held at in one overseas prison like “cowering dogs.” He offered accounts, provided to defense attorneys in summaries, of the 9/11 defendants’ rectal rehydration, sleep deprivation, kept nude in interrogation, put in stress positions and, in the instance of Mohammed, having his hair and beard shaved off.
Judge Parrella, who just got the case, wondered if the judge — who presided from 2012 until handing it over August — should be entitled to “horizontal deference.” The prosecutors said no. Defense attorneys who said that Pohl had read and evaluated all the secret case evidence said yes.