End 16 Years Of Injustice

Guantánamo Judge Bans So-Called “Clean Team” Evidence in 9/11 Trial, Then Resigns

The five men accused of involvement in the 9/11 attacks. From L to R: Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Walid bin Attash, Ammar al-Baluchi and Mustafa al-Hawsawi.

By Andy Worthington, August 27, 2018

Last Friday, August 17, a ruling of potentially huge significance took place at Guantánamo in pre-trial hearings for the proposed trial by military commission of the five men accused of involvement in the terrorist attacks of September 11, 2001, who include Khalid Sheikh Mohammed. All five men have been held at Guantánamo since September 2006, and, before that, were held and tortured in CIA "black sites" for up to three and a half years.

Today, just ten days later, the judge, Army Col. James L. Pohl, 67, who has been the judge on the case since the men were arraigned in May 2012, announced that he will retire on September 30 and named Marine Col. Keith A. Parrella, 44, to replace him. Giving notice of his intention, he stated, "I will leave active duty after 38 years. To be clear, this was my decision and not impacted by any outside influence from any source."

Astonishingly, it is ten and half years since the U.S. government first filed charges against the five men accused of involvement in the 9/11 attacks in the military commission trial system, which had been ill-advisedly dragged from the history books by Dick Cheney and his lawyer David Addington in November 2001, but had been ruled illegal by the Supreme Court in June 2006, in Hamdan v. Rumsfeld. The commissions were subsequently revived with Congressional backing, but struggled to establish any legitimacy throughout the rest of Bush’s presidency.

The Obama administration put the commissions on hold after Barack Obama took office in January 2009, but unwisely revived them in November 2009, despite Congress and the administration being warned — by critics, including some of Obama’s own officials — that the war crimes prosecuted in the commissions, focused particularly on providing material support for terrorism and some other charges, would be overturned on appeal, as they had been invented as war crimes by Congress, and were not internationally recognized (although, crucially, they were recognised as crimes in federal court).

In a series of embarrassing results, the convictions against two of the three men convicted under George W. Bush — Salim Hamdan and David Hicks — were overturned, and, in several rulings since 2013, most of the charges against the third man, Ali Hamza al-Bahlul, who was given a life sentence in November 2008 after a one-sided trial in which he refused to mount a defense — have also been quashed.

Five convictions took place under Obama, although all involved plea deals, and their legitimacy too has generally been called into question or overturned.

In the trials that are ongoing, a further complication has come to light, not involving the legitimacy or otherwise of war crimes, but involving the use of torture, and the seeming impossibility of successfully prosecuting prisoners who have been tortured.

This should have been obvious to the Bush administration officials who authorized the use of torture after 9/11, specifically in the network of "black sites" that the CIA established in countries including Thailand, Poland, Lithuania and Romania, but it took official years to understand how much they had damaged the possibility of any successful judicial outcome. When they did, they attempted to remedy it by sending in so-called "clean teams" of FBI agents to interrogate them without using torture, and with the intention of getting the men in question to repeat the statements they had made under torture in a non-coercive situation.

To the government’s disappointment, these are the statements that, last Friday, Judge Pohl ruled could not be used by prosecutors.

As Charlie Savage explained for the New York Times, "The decision brought to a head a long-running and potentially irreconcilable tension in the case: Defense lawyers say they need to thoroughly investigate the torture of their clients at the hands of the CIA for there to be a fair death penalty trial. But the government says there is a national security imperative to keep certain facts related to that period — like the identities of CIA personnel who worked at certain prisons — secret."

Savage stated that the FBI’s "clean team" agents "did not know what the detainees had previously said," which strikes me as unlikely, although, even if it were the case, lawyers for the men subjected to CIA torture have always had strength in their argument that, as Savage put it, "the lingering effects of their clients’ previous torture tainted those interrogation sessions, too."

As Savage proceeded to explain, "To make that case, defense lawyers said they needed to investigate what had happened to their clients in CIA custody independently of restrictions the government imposed on their ability to speak to potential witnesses, including forbidding them from directly approaching agency personnel."

Savage added that prosecutors had "offered summaries of what guards and doctors had seen and done, saying that was sufficient," but that Judge Pohl disagreed, stating, in a 36-page ruling, that those summaries "were not an adequate substitute," as Savage described it, also noting that, "While he upheld the rules the government imposed on the defense lawyers’ ability to investigate the CIA in general, he also suppressed the FBI statements as evidence because the rules were too restrictive for a fair fight over their admissibility."

In his ruling, he explained that the summaries "will not provide the defense with substantially the same ability to investigate, prepare and litigate motions to suppress the FBI clean team statements" because the restrictions on defense lawyers’ ability to talk to witnesses "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."

As a result, he refused to allow the government to "introduce any FBI clean team statement from any of the accused for any purpose."

On August 23, prosecutors asked Judge Pohl to reconsider his ban, calling the results of the FBI interrogations "their most potent evidence," as Carol Rosenberg described it for the Miami Herald.

In an 81-page appeal, prosecutors claimed, "The statements made by the accused to the FBI constitute acknowledgments of guilt and responsibility for the largest act of terrorism in the history of the United States, which resulted in the deaths of 2,976 innocent people. Each of the confessions is many pages in length, with each of the accused painting detailed accountings of the plot, their interactions with the hijackers and other co-conspirators, and their own specific participation in the offenses, despite the five accused being thousands of miles away at the culmination of the plot with the attacks of September 11, 2001."

Nevertheless, James Connell, who represents Ammar al-Baluchi, one of the five accused, hailed Judge Pohl’s ruling, and stated, "Witnesses are the foundation of the American criminal justice system. If the government prohibits the defense from investigating witnesses, the proceeding becomes more like a play than a trial."

Providing further detail about the wrangling over access to witnesses, Charlie Savage stated that Army Brig. Gen. Mark Martins, the commissions’ chief prosecutor, and his team "had argued that the law permitted some concessions to national security imperatives in such a case, while playing up how much information the government had turned over in discovery about the black-site program, including summaries about what agency employees and contractors who served as guards, doctors and interrogators at the prisons saw and did." He added, "Most of those people are described using code names."

As Savage also explained, "After providing that information, the prosecution told defense lawyers last year that they were not allowed to directly approach people they believed might be such witnesses or to travel to countries they believed might have hosted prisons to ask questions." Instead, prosecutors insisted, "the defense has to go through the government to request interviews," and "the government in turn approaches witnesses and asks if they want to talk to defense lawyers while also telling them what they can and cannot discuss."

As Col. Pohl noted, what this meant in practice was that "only a few of the dozens of witnesses the defense asked to speak with agreed to talk under those conditions," a clearly unsatisfactory situation that, added to the fundamentally dubious nature of the "clean team" interrogations, means that we at "Close Guantánamo" hope that Col. Pohl’s ban survives his departure.

The sad truth about this trial, and the few others underway at Guantánamo — although they all appear trapped in interminable pre-trial hearings — is that the only viable venue for terrorism trials is in federal court, a conclusion that the Obama administration should have reached instead of, firstly, re-introducing the notion of both federal court trials and military commissions in November 2009, and, secondly, subsequently bowing to scaremongering, and withdrawing the proposal to hold the 9/11 trial in a federal court in New York.