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At 7:57 am on September 11, 2019, loudspeakers at Guantanamo Bay detention center in Cuba began sounding Reveille. I was drinking coffee outside the decrepit hangar that houses the media center where journalists work when they are on the base. (This was my thirteenth trip to Guantanamo.) I noted that flags were flying at half mast to mark the somber occasion of the eighteenth anniversary of the terrorist attacks in 2001. This anniversary coincided with the thirty-eighth round of hearings in the Guantanamo military commission case against five men accused of responsibility for those attacks.
In the high security courtroom an hour later, the chief prosecutor, General Mark Martins, took a few moments to acknowledge all those who suffered and died. He has been making such statements every September 11 since the defendants were arraigned in 2012. Over the past seven years, many things have happened in this case, but the start of a trial is not one of them. Two judges have come and gone. The third, Colonel Shane Cohen, made headlines in August, a month into his new job, when he set a trial start date of January 11, 2021. By September, after he apprised himself of the case’s complexities and unresolved issues, he acknowledged that this timeframe might be unrealistic.
Whenever the 9/11 case, as it is known, does move past the pretrial phase, it will be the largest criminal trial in US history because of the number of victims. Thousands were killed on September 11, 2001 when 19 men on a mission for the terrorist organization al-Qaeda hijacked four commercial airliners. Two planes were flown into the twin towers of the World Trade Center in New York City, which caused them to crumble, another crashed into the Pentagon, and the fourth, which was probably destined for the US Capitol Building, was brought down in western Pennsylvania by passengers who overpowered their hijackers. The charge sheet lists the names of 2,976 victims who were direct casualties of these attacks.
But the number of fatalities is not static. Over 200 firefighters and police have since died from cancer or other deadly diseases contracted from months of work pulling bodies out of the toxic debris of the World Trade Center. Now they, too, are recognized by the government as victims of the attack. Relatives of some of these first responders were in the delegation of victim family members who traveled to Guantanamo in early September to see for themselves the men accused of setting in motion the events that killed their loved ones. During the hearing on September 11, 2019, the victim family members quietly left the spectators’ gallery at the back of the courtroom and went outside four times to commemorate and grieve the moment when each of the planes crashed.
A Unique Turn in the Case
The thirty-eighth round of hearings continued for another two weeks. Each week a new delegation of victim family members arrived on the island. They, along with journalists and observers from non-governmental organizations and law schools, represent “the public” in this hard to reach and highly securitized venue. Those of us at Guantanamo in September were privy to a unique turn in this case. Most hearings have been consumed by fights over the discovery of information, protective orders that govern how the defense teams must handle classified information and the conditions of confinement for the five men on trial. This time, however, there were live witnesses who would testify and be cross-examined.
Two of the witnesses were FBI agents in court for the second time. The first time, in December 2017, they were called to testify about the FBI’s so-called “clean team” process. These agents had been dispatched to Guantanamo in January 2007 to interrogate men who previously had been held for years in CIA black sites. Prosecutors want to use the self-incriminating statements that came out of those FBI sessions at trial. The official narrative goes as follows: Whatever statements these men made while in CIA custody will not be used in this case, and the statements they made to the FBI are court-worthy because the interrogations in 2007 were conducted using “clean” and lawful methods.
That narrative took a blow at the December 2017 hearing when one of the agents explained that, while preparing for her assignment, she consulted CIA records to learn what these men had said in the black sites and she vetted her own questions with the CIA. She also explained that the CIA actually controlled the FBI “clean team” process. That 2017 testimony exposing collusion with the CIA opened the door for new defense efforts to challenge those FBI statements as tainted by torture.
The 9/11 case’s first judge, Colonel James Pohl, issued a ruling in August 2018 to exclude the FBI statements, then he retired. Pohl’s ruling was intended as a remedy to compensate the defense for recent, heightened restrictions imposed by the prosecutors on their abilities to conduct their own investigations about their clients’ torture by the CIA. Pohl’s successor, Colonel Keith Parrella, set aside that decision and put the FBI statements back on the table, then he transferred to a different job. When Judge Cohen took the bench, he decided neither to restore Pohl’s ruling nor to accept Parrella’s decision. Instead, he opted to schedule hearings to allow the defense to make the case that the FBI statements should be suppressed.
Arguing that Torture Taints Evidence
These suppression hearings, which started in September 2019, are continuing into 2020. They have implications for all five defendants and their legal teams. But the team headed by James Connell, that represents Ammar al-Baluchi, is running this round of hearings. Connell filed the 1,200-page classified suppression motion now being litigated. He intends to use these suppression hearings to shed light on the truth about torture. At the start of the hearing on September 16, Connell asked Judge Cohen if he could make a brief statement before the first FBI witness was called to the stand. Permission granted, Connell took the opportunity to draw attention to another eighteenth anniversary. “Sir,” he said,
I would be remiss if I did not remark [that today is] the historic occasion of the…decision of the United States, my government, to use torture as an instrument of policy and investigation. [W]e’ll hear important testimony today about the events of 9/11, a mass murder in which many people were killed. The trajectory of our [nation’s] history was changed and many people, some of whom are in this courthouse, suffered. The key to this hearing and, I would suggest as a policy matter above my pay grade, to the healing of our country is to understand that both of those narratives are true at the same time. Our nation suffered a grievous wound, and it failed to live up to its principles afterward. Both of those things are true at the same time. [1]
Connell was alluding to the fact that on September 16, 2001, President George W. Bush secretly authorized the CIA to hunt and capture “high value” terror suspects. This order greased the skids for the agency to dust off its Cold War playbook and operationalize the mythology that physical and psychological violence are effective means of obtaining accurate information and, therefore, are necessary to wage and win a war on terror. The CIA’s Rendition, Detention and Interrogation (RDI) program, however, was not geared to the prospect of future trials but rather was intended to acquire “actionable intelligence” that could be used to prevent future attacks and facilitate the capture or killing of terrorists.
In 2002, the CIA began disappearing suspects into secret prisons in foreign countries where they were subjected to unstinting brutality and degradation. Two psychologists contracted to run operations in these black sites, James Mitchell and Bruce Jessen, adapted experiments on dogs to reduce high value detainees to a state of “learned helplessness.” They believed that if detainees’ psyches were destroyed, they would be incapable of resisting interrogators’ demands for information about terror plots and networks. The five men on trial in the 9/11 case were all held in CIA black sites and subjected to this kind of treatment for years.
The Enduring Legacy of CIA Torture
The US torture program was forced to a halt in 2006 when the Supreme Court ruled in Hamdan v Rumsfeld that everyone detained by the United States in the war on terror, including those in CIA custody, is covered by Common Article 3 of the Geneva Conventions. Common Article 3 prohibits torture, cruel treatment and outrages on human dignity and recognizes that violations are war crimes. President Bush criticized the Supreme Court and complained about the ruling, but he emptied the black sites and transferred 14 men to Guantanamo in September 2006. Although, technically, they were moved into military custody, CIA control did not end for one simple reason: What was done to them in the black sites remains classified top secret, and this information—including their own memories of their torture—is owned by the CIA.
What was done to them in the black sites remains classified top secret, and this information—including their own memories of their torture—is owned by the CIA.
To keep those secrets secret, the former CIA prisoners are housed in a facility known as Camp 7, which Connell has described aptly as a “dark grey site.” Camp 7’s location on the base and the identities of those who work there are classified, and the conditions of confinement include constant surveillance and near-total isolation. One of the facts about Camp 7 that came out at the hearings in October was that the guard force, Task Force Platinum, is manned by people who dress up like US soldiers but are not actually Department of Defense employees, which suggests that they are CIA agents or contractors.
After the CIA prisoners were transferred to Guantanamo, the Bush administration took steps to charge Khalid Sheikh Mohammad, the alleged mastermind of the September 11 plot, and four others accused of supporting roles. But the risk that they might reveal classified information about the CIA’s RDI program presented a few hurdles for a public trial. The high security courtroom, which was built for the 9/11 case, was designed to block any exposure of the CIA’s sources and methods. For example, the audio feed to the soundproof spectators’ gallery has a 40 second delay and there is a kill switch that enables a censor to cut sound entirely if someone were to blurt out something classified in open court. When that occasionally happens, a red flashing light and an alarm go off.
When the Bush administration charged the five men in 2007, the assumption was that a military commission trial would be quick and obtaining guilty verdicts from a panel of officers would be easy. However, at the arraignment hearing, Mohammad announced that he rejected his military lawyer and would represent himself. Then he made the surprising offer to plead guilty immediately on the condition that he go directly to execution. Several others made the same offer. The government had not anticipated this strategy of martyrdom by military commission, and the case collapsed before Bush left the White House.
In November 2009, the Obama administration announced plans to prosecute the 9/11 case in the federal court in lower Manhattan because, Attorney General Eric Holder explained, it was close to the scene of the crime. That plan was derailed through a confluence of right-wing hysteria against bringing terrorists into the United States and White House reluctance to defend it. For a lack of alternatives, the men were recharged in the military commissions in 2011. In order to improve on the system created by the previous administration and to foster the appearance of a fair trial, the rules of evidence were tightened to exclude coerced statements and the government committed itself to funding lawyers with capital trial experience to represent defendants who face the death penalty. Each of the defense teams in the 9/11 case is headed by a learned counsel (the term for an attorney experienced in death penalty cases).
Meanwhile, in 2009, the Senate Select Committee on Intelligence (SSCI) undertook a massive investigation of the CIA’s RDI program. Staffers combed millions of pages of CIA records and, in 2011, produced a 6,700-page report which concluded that the program had been an abject failure in generating accurate information and a national security debacle. But once again, right-wing opposition to criticism of the Bush administration’s interrogation policies and Obama White House reluctance to fight for the principles of truth and transparency converged, with the result that the report was never made public except for a heavily redacted executive summary released in December 2014. After Republicans regained control of the Senate, they issued a demand that every copy of the critical report distributed to government agencies be returned to the SSCI, with the plan of destroying them all. One copy, however, remains locked in a safe in the Pentagon because Judge Pohl ordered it to be preserved. But he did not order the preserved copy to be handed over to the defense teams, and neither have either of his two successors.
This locked up SSCI report is symbolic of the whole 9/11 case. For years, the defense teams have litigated in the lopsided discovery process for information about what actually happened to their clients in the black sites, information that is contained in the report that they cannot access. What they have gotten instead are prosecution-created substitutions of primary materials and summaries about the CIA torture program. The defense teams have had to litigate their dissatisfaction that these discovery materials are inaccurate and inadequate. They have had to argue, repeatedly, that they have a legal right to obtain “granular” accounts and details about the interrogation methods used on their clients because in a capital case, heightened due process applies.
The prosecution disagrees that the discovery process has yielded inadequate and inaccurate information. Prosecutors have insisted, repeatedly, that the information they have provided is sufficient to put on a defense, and that the kinds of details that the defense teams seek are some of the US government’s most sensitive and highly guarded secrets, which must be protected at all costs. The prosecution’s position is that whatever the CIA did to the men after they were captured has no bearing on the roles that they allegedly played to cause the 9/11 attacks.
Accused Perpetrators but Also Victims
The incommensurable reality is that the 9/11 defendants are accused of causing the deaths of thousands of people, and they are also victims of US torture. Both of these are true at the same time. These men, whom the government wants to convict and hopes to execute, literally embody the high costs and long-term consequences of torture. Ramzi bin al-Shibh, who is accused of recruiting some of the hijackers, is, by all accounts, the most psychologically damaged of the five. His mental health and his competency to stand have been a recurring and contested subject in the hearings. For years, he has complained to his attorneys and to the judge that he continues to be tortured with noises and vibrations intended to keep him sleep deprived. Is bin al-Shibh actually being subjected to noises and vibrations or are these thoughts the consequence of a torture-damaged mind? The question cannot be tested because Camp 7 is off limits to independent investigators.
Mustafa al-Hawsawi, who is accused of channeling funds to some of the hijackers, is certainly the most physically damaged. He is in constant, excruciating pain from injuries he sustained in the black sites when he was sodomized repeatedly. Although al-Hawsawi had rectal reconstructive surgery in 2016, this has neither ameliorated his suffering nor eliminated the hard choice he faces daily between fasting and eating: When he eats, he has to defecate, and when he defecates, he has to reinsert his own anal tissue.
Ammar al-Baluchi, who is accused of being another financier for the September 11th plot, has bouts of vertigo and suffers from post-traumatic stress disorder. He and his torture were featured in the Hollywood film, Zero Dark Thirty. The CIA gave filmmakers Kathryn Bigelow and Mark Boals information about al-Baluchi, despite the fact that they did not have security clearances, but it has withheld this same information from his legal defense team. To poke a hole in the prosecution’s contention that the details of al-Baluchi’s torture are a legitimately guarded secret, Connell screened the torture scenes featuring the character Ammar in the commission in February 2016, then argued that they depicted things done to the real-life Ammar but are still classified as a state secret. Al-Baluchi’s attorneys had shown him those scenes before, but when they played in the courtroom, he sat with his head down, visibly shaken. Connell acknowledged that the experience had a re-traumatizing effect on his client.
Khalid Sheikh Mohammad is accused of planning the September 11th attacks from A to Z. When victim family members step up to the window in the gallery to get a better look at the defendants, it is him that they want to see. Ironically, perhaps, he appears to be the heartiest of the five, despite the fact that his torture was more brutal than anyone else’s. At a hearing in April 2018, one of Mohammad’s lawyers, Gary Sowards, explained that an MRI revealed traumatic brain injury consistent with his torture in the black sites. As Sowards drew the connection between Mohammad’s brain damage and experiences of having his head repeatedly bashed into walls and being waterboarded 183 times, there was an audible gasp from people in the gallery. Sowards was making the point, often voiced by defense attorneys, that the government that tortured Mohammad forfeited the right to execute him.
To Suppress or Not to Suppress, that Is the Question
The suppression hearings that began in September represent a major turn from the struggles of defense teams to get information that the government has withheld to a new struggle to exclude statements the government wants to use at trial. The defense teams are striving to persuade the judge that those statements made to FBI agents in 2007 are fruit of the poisonous tree. For Connell, one of the objectives of the suppression hearings is to illuminate that the FBI was far more implicated in the CIA torture program than is publicly known. At the hearings in September and October, Connell methodically dismembered the official narrative that the FBI kept its hands clean of torture in the war on terror. Under questioning, witnesses revealed that FBI collusion and information-sharing with the CIA dated back to 2002. Because FBI agents were barred from direct access to prisoners in the black sites, they sent questions arising from their own investigations to be asked by CIA interrogators despite the fact that they knew the agency’s methods included violence and brutality. The sworn testimony about interagency collaboration, Connell hopes, will persuade Judge Cohen to suppress the defendants’ FBI statements.
The two psychologist contractors who designed and ran the torture program, James Mitchell and Bruce Jessen, will take the stand on January 20.
A bigger and more amorphous objective in the suppression hearings is to demonstrate persuasively that there is no “after torture” for these victims, as prosecutors claim and some of the government’s witness have asserted. Connell aims to debunk those claims and prove that years of intensive and deliberate psychic damage were highly relevant to how the defendants behaved and what they said to FBI interrogators in 2007.
The two psychologist contractors who designed and ran the torture program, James Mitchell and Bruce Jessen, are scheduled to take the stand at the hearings beginning next week on January 20. For years after the duo were outed by investigative journalists, they kept a resolutely low profile. That all changed in April 2014 amidst the fight over the fate of the SSCI report. (That fight is vividly depicted in the 2019 film The Report, directed by Scott Z. Burns.) Since 2014, when Mitchell gave his first interview to The Guardian, he has become a vociferous defender of the theories of learned helplessness he put into practice in the black sites. If, when he takes the stand, he maintains his self-congratulatory assessment that the strategies he designed and implemented to disrupt people’s personalities were highly effective, he will be helping Connell make the case for suppression of the FBI statements. Whatever happens in the upcoming round of hearings, the CIA torture program will get a kind of exposure that the government has gone to great lengths to keep hidden.
The 9/11 case, although it garners little media attention or public interest, is an important battleground for the truth about torture. Indeed, this is the last active front in this battle. Official secrets, grand lies and popular myths about torture are being exposed and challenged, motion by motion and witness by witness. At the most basic level, the legacy of torture has undermined the ability of the government to use this case to provide justice for the thousands of victims of the September 11th attacks. It has also damaged the pretensions that government secrets and a fair trial with death on the table are compatible. We cannot predict how this case will end, but one thing should be clear: the history of the United States in the twenty-first century is being written in the high security courtroom in Guantanamo.
(Front page image: An artist’s sketch of the 9/11 case in the Guantanamo military commission. Courtesy of Janet Hamlin.)
Endnote
[1] This statement is a direct quote that can be found in the official transcript of the hearing.
