Military Commission Bars Guantánamo Death-Penalty Prosecutors From Using Statements by 9/​11 Detainees

A Guantánamo mil­i­tary com­mis­sion judge has barred pros­e­cu­tors from using state­ments five accused 9/​11 plot­ters made to the FBI after they had been sub­ject­ed to years of tor­ture in CIA black sites. On August 17, 2018, the mil­i­tary judge, Army Colonel James L. Pohl (pic­tured), sup­pressed all use of the state­ments, rul­ing that restric­tions pros­e­cu­tors had placed on the abil­i­ty of defense coun­sel to inter­view wit­ness­es and inves­ti­gate the tor­ture made it impos­si­ble for the defense to mean­ing­ful­ly chal­lenge the state­ments’ vol­un­tari­ness and reliability. 

The defen­dants — includ­ing alleged attack mas­ter­mind Khalid Shaikh Mohammed—had been tor­tured over the course of three to four years of CIA inter­ro­ga­tion in secret loca­tions. The tor­ture involved phys­i­cal, sex­u­al, and psy­cho­log­i­cal abuse, includ­ing water­board­ing; sleep depri­va­tion; slam­ming the cap­tives’ heads into walls; sus­pend­ing them, shack­led, in painful posi­tions; forc­ing them to remain nude or to wear dia­pers; and rectal abuse. 

A 2014 report on CIA inter­ro­ga­tions by the U.S. Senate Select Committee on Intelligence — known as ​“The Torture Report” — doc­u­ments that Mohammed was sub­ject­ed to numer­ous acts of tor­ture, includ­ing sleep depri­va­tion, ​“rec­tal rehy­dra­tion,” and being water­board­ed 183 times in a sin­gle month. Knowing that it could not use state­ments obtained by the CIA dur­ing those inter­ro­ga­tions, the gov­ern­ment had what they termed a ​“clean team” of FBI inter­roga­tors — who did not know what the detainees had told their CIA coun­ter­parts — inter­ro­gate the detainees to obtain state­ments for use at tri­al. The defense lawyers argued they need­ed access to records and wit­ness­es doc­u­ment­ing the tor­ture to be able to show that the FBI state­ments were a coerced by-prod­uct of the CIA interrogations. 

Although Guantánamo defense coun­sel have top-secret secu­ri­ty clear­ance, the gov­ern­ment pro­vid­ed the defense only with redact­ed records of the CIA deten­tion and ​“clean team” sum­maries of what guards and doc­tors said had occurred dur­ing the CIA inter­ro­ga­tions. Defense lawyers also were threat­ened with pros­e­cu­tion if they tried to locate and inter­view CIA agents and oth­ers who had infor­ma­tion about the cir­cum­stances of their clients’ interrogations. 

Judge Pohl ruled that the gov­ern­ment restric­tions denied the defense the abil­i­ty to prop­er­ly ​“inves­ti­gate, pre­pare and lit­i­gate motions to sup­press the F.B.I. clean team state­ments” and ​“to devel­op the par­tic­u­lar­i­ty and nuance nec­es­sary to present a rich and vivid account of the 3 – 4 year peri­od in C.I.A. cus­tody the defense alleges con­sti­tut­ed coer­cion.” Prosecutors have until August 27 to decide whether to appeal the order to the U.S. Court of Military Commissions Review. An appeal would fur­ther delay the already decade-long pre-tri­al pro­ceed­ings in the case.