For the first time, the military commission that is preparing to try Khalid Sheikh Mohammed, who is accused of planning the 9/11 attacks, will focus almost exclusively on a subject that for years wasn’t allowed to be mentioned in the courtroom: torture.
On Tuesday, Mohammed is expected — also for the first time — to be in the same room with two CIA psychologists who, his lawyers say, tortured him. The encounter will occur at the start of the 40th series of pretrial hearings for Mohammed and four other defendants charged in the Sept. 11, 2001, attacks, in which hijacked jetliners were crashed into the World Trade Center and the Pentagon, killing 2,973 people and altering the course of history.
The five defendants were all captured in 2002 or 2003 and held in secret prisons overseas until they arrived at Guantánamo in late 2006. Mohammed, now 55, was captured in Pakistan then taken to Afghanistan, Poland and Romania before being moved to Guantánamo. He was subjected to waterboarding and other brutal methods of interrogation that have now been the source of controversy across three presidencies.
The Obama administration had hoped to try Mohammed in federal court in Manhattan, but the plan was dropped after Congress passed a law prohibiting the federal government from spending money transporting prisoners from the Navy brig at Guantánamo to the mainland United States.
He now faces trial before a military commission here. The trial is scheduled to start in January 2021 — nearly 20 years after the attacks.
The prohibition on discussion of torture began to erode when the U.S. Senate Select Committee on Intelligence released a summary of its examination of the so-called CIA black sites in 2014.
Defense lawyers are seeking to bar confessions that all five defendants gave to FBI interviewers, called clean teams, in 2007; “I was responsible for the 9/11 operation, from A to Z,” Mohammed is said to have told a military tribunal at the time. The prosecution has said those confessions are untainted by the prior torture and key elements in their case.
James Mitchell and John “Bruce” Jessen, the psychologists who devised the Central Intelligence Agency’s so-called enhanced interrogation program, have been called to provide testimony.
What the defense teams hope to gain from Mitchell and Jessen’s testimony are not solely the facts of how the interrogations were conducted, but to show that the FBI cooperated with the CIA in the black site interrogations and that that sort of compliance did not end when the torture did. Mitchell has contended that his techniques induced compliance, a “learned helplessness,” but said that the condition ends over time.
David Nevin, an attorney for Mohammed, calls that assertion “dishonorable.”
“You torture someone for three and a half years and then you have a break and you take them to a new place and you say, ‘Now we’d like to ask you some more questions,’ ” Nevin said in an interview. “We have some other people here who want to do that. The question is: Are those statements in any real meaningful sense, in the terms in U.S. law, an act of free will and voluntariness? And it’s really almost laughable to even ask the question. Those are clearly coerced statements in any understanding of the law that applies to this kind of activity.”
It will be the first public testimony from Mitchell and Jessen, although Mitchell has written a book, “Enhanced Interrogation: Inside the Minds of the Terrorists Trying to Destroy America,” about the interrogation program. In it, he maintains that they did not torture because they did not inflect sufficient pain or irreparable damage to the men subjected to them.
In addition to Mohammed, the defendants are his nephew Ammar Baluchi, Ramzi bin Shibh, Mustafa Hawsawi and Khallad bin Attash. The first three are accused of assisting Mohammed with the logistics of the 9/11 plot; Hawsawi is accused of training some of the hijackers.
In what by now has become a typical Guantánamo quirk, the prosecution last week issued a new set of rules declaring what is or isn’t classified material affecting the case. One result is that some of the information in the public files of the case is now classified, years after it was revealed in open court.
Another result is that several books, including Mitchell’s, which was published in 2016, are also now considered classified, according to James G. Connell III, a defense attorney. He likened it to turning a fruit basket upside down.
The current judge, Air Force Col. W. Shane Cohen, is the fifth assigned to the case. There have been dozens of attorneys involved, a mix of civilians and military. The hearings have gone on so long several military lawyers have retired. A few have come back as civilians.
The case docket has more than 8,600 filings. Shockingly few of these have to do with the crimes the five defendants are accused of committing — the murders of almost 3,000 people.
At various points in time defense lawyers have argued they were not qualified to defend their clients; translators have interrupted lawyers to insist that they be quiet; defendants have refused to answer any questions from the judge or even acknowledge they’d been asked; they have interrupted the proceedings to pray or complain they were being attacked by invisible rays.
There is a weirdness to Guantánamo that seems to affect everything and everyone who spends any time there. Just this month, a former base commander was tried for covering up the death (and possible murder) of his lover’s husband. The case began when the dead husband’s body was found floating in the bay.
The hearings are held in a corner of the Navy base within what is called the Expeditionary Legal Complex, which has a prefab feel to it, surrounded by cyclone fences, braided with coiled razor wire, and watched by heavily armed guards. Guard towers rise in the morning like Star Wars robots before court commences. The courtroom itself is huge, with separate tables for each of the defense teams.
The walkways leading to the court are a winding obstacle course. Roads leading to the complex are littered with crash-resistant barriers. Passports are required for entry and exit to the court, even though access to the naval base is tightly controlled and nonmilitary personnel cannot move about without escorts.
The Navy base itself is an oddity, a 45-square-mile bit of America-controlled territory in southeastern Cuba, a spoil of the Spanish American War. Theodore Roosevelt and Cuba signed a lease for the base shortly after that war ended. The lease is perpetual and can only be terminated by mutual agreement. The U.S. pays an annual “rent” of $4,085. For decades, Fidel Castro refused to cash the checks.
The system under which the hearings are held, called a military commission, employs a combination of features from the federal courts, military courts martial and ad hoc rules and procedures devised along the way.
The combination has yielded a procedural mess. It’s less like a federal criminal trial than a slow-motion circus. To wit:
- The FBI several years ago placed an informant on one of the defense teams.
- It was determined that someone, probably within the CIA, monitors the proceedings in real time and once shut down a hearing because of a presumed danger of classified information being revealed.
- Listening devices were found in a room where defense attorneys meet with their clients. One of those meeting rooms, it was discovered last year, was part of a former black site.
- The Marine general who heads the defense teams was placed under house arrest last year.
- A black site the court had ordered to be preserved as potential evidence was destroyed.
- Several people the prosecution intended to call as witnesses have died.
- The entire court travels together in a charter aircraft for the hearings; in 2017 their flight nearly crashed landing in a heavy wind.
- Because the crimes carry a potential death penalty sentence, each of the lead attorneys for the defendants has to have experience trying capital cases. An entire slate of hearings had to be canceled because one of those attorneys broke her arm and couldn’t travel.
- Defense lawyers are unable to talk with their clients about anything the government decides is classified. For years, this included all issues having to do with the prisoners’ treatment past or present. Anything that happened to the defendants while in American custody was considered presumptively classified.
This is a heavily edited selection form a very long list of oddities. The ultimate strangeness is the substance of the proceedings themselves. There is little doubt that KSM is guilty of planning and managing the attacks of 9/11 and several other attacks different and less horrible only in scale. His guilt will not be argued at trial. Instead, the trial and the pre-trial that has preceded it for years will be focused not on what he has done but on what was done to him as a result.
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