The judge in the death-penalty trial of those accused of carrying out the Sept. 11, 2001, terrorist attacks in the U.S. has ruled that prosecutors may not use key FBI interrogations conducted at the Guantanamo prison 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 while they were questioned for years and tortured. Instead, as a substitute, prosecutors had planned to have FBI agents describe what the suspects told them soon after their September 2006 transfers to Guantanamo in supposedly consensual interviews.
But the judge, Army Col. James L. Pohl, excluded the FBI interviews, known as "clean team statements," from trial.
"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. "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 for evidence about the black sites, to let them try to get the Guantanamo 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 captives were brought to Guantanamo after three to 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, and subjected them to dietary manipulation and rectal abuse. Mohammed was waterboarded 183 times.
FBI agents, taking some directive by the CIA, questioned the five men in their first months at Guantanamo 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 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 yeas ago. This was based on cover-up 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 Guantanamo 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 on the way 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 wrote 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 Guantanamo Sept. 10-14.
--This article is written by By Carol Rosenberg from Miami Herald and was legally licensed via the Tribune Content Agency through the NewsCred publisher network. Please direct all licensing questions to firstname.lastname@example.org.