Torture Casts a Long Shadow over 9/11 Military Commission

The latest session of pretrial hearings in United States v. Khalid Sheikh Mohammad, et al threw into sharp relief the central tension facing the Guantanamo Bay military commission: the extent to which the United States’ torture of the five 9/11 defendants—and government efforts to hide key information related to that torture—undermines any chance at justice.

At times during the hearings, the prosecution went so far as to appear to defend the use of torture. On the final day, Prosecutor Ed Ryan said the U.S. government was “forced” to create the torture program after 9/11 and that the prosecution was prepared to defend the decision, stating they were “ready for that fight.” In response, Rita Radostitz, counsel for Khalid Sheikh Mohammad, and Walter Ruiz, counsel for Mustafa al Hawsawi, reminded the military commission that the bedrock principles of the U.S. judicial system require a fair trial, regardless of the severity of the crime. To defend torture degrades that system and denies justice.

The five defendants were tortured through the Rendition, Detention, and Interrogation (RDI) program at secret CIA prisons, or “black sites.” In late 2006, they were transferred to Guantanamo Bay, and the FBI “clean team” re-questioned them there in January 2007. The purpose was to obtain voluntary statements untainted by torture and thus admissible at trial.

However, the defense teams later discovered the FBI had also played a role in the CIA black sites. Last month, one of the FBI agents involved in the “clean team” interviews revealed he had collaborated extensively with the CIA in the RDI torture program, sending CIA black site operatives hundreds of questions to ask the detainees. This admission, along with other evidence of the FBI’s participation in the RDI torture program, calls into question whether the FBI “clean team” was in fact “clean”—and thus whether statements made by the defendants during those 2007 interrogations could be admitted at trial.

Last week’s hearings featured testimony from several witnesses on defendant Ammar al Baluchi’s motion to suppress alleged statements as involuntary and obtained by torture.

On Monday, September 23, FBI Special Agent Stephen McClain testified about his involvement in the High Value Detainee (HVD) Prosecution Task Force and the January 2007 “clean team” questioning of al Baluchi. McClain stated that before this interrogation, he had no prior knowledge of al Baluchi or his statements to the CIA while detained in a secret CIA prison. James Connell, civilian death penalty attorney for al Baluchi, asked about statements McClain had previously made to him regarding the CIA’s role in selecting him for the HVD Task Force. McClain promptly denied knowledge of any CIA involvement in his selection for the Task Force.

On Tuesday, September 24, New Jersey Superior Court Judge Bernard E. DeLury testified about his prior role in the Combatant Status Review Tribunals (CSRT), established at Guantanamo Bay in the early 2000s to issue a one-time determination of whether the defendants could be held as “enemy combatants.” The CSRTs were discontinued after the Supreme Court found them legally inadequate. Gary Sowards, civilian death penalty attorney for Mohammad, asked DeLury whether he would be concerned about the voluntariness of the defendants’ statements during the CSRT if he knew they had been tortured. Sowards cited the torture Mohammad had suffered over four years of incommunicado detention: being hung naked in his cell, deprived of sleep, anally raped, subjected to 183 mock executions, and the kidnapping, abuse, and death threats made against his children. DeLury replied that such torture would indeed make him question the voluntariness of Mohammad’s statements. Yet, as Sowards noted, the prosecution intends to use these statements against Mohammad at trial.

Finally, on Wednesday, September 25, testimony from an FBI fingerprint examiner revealed that the U.S. government is asserting national security privilege over the origins of its fingerprint evidence, undermining due process guarantees and preventing defense teams from being able to fully confront the evidence brought against the accused.

In January, the military commission will hear several weeks of testimony from James Mitchell and Bruce Jessen—the psychologists who designed the torture program. As the military commission attempts to balance the imperatives of justice and national security, the impact of torture on this death penalty trial cannot be understated.