GUANTÁNAMO BAY, Cuba — A lawyer on Wednesday invoked a firm U.S. right to confront the prosecution when he asked a military judge to allow the accused mastermind of the September 11, 2001 attacks to attend secret testimony from two psychologists waterboarding him 183 times.
The argument illustrates the back-and-forth nature of war crime proceedings, whose rules generally exclude defendants from secret testimony in the pre-trial phase.
The psychologists, both former CIA contractors, began testifying in public court in January 2020. But their return to court to resume testimony has been suspended, in part because the judge hearing it abruptly announced his retirement two months later, and in part because the pandemic halted proceedings for more than 500 days.
The overarching issue is whether the confessions made years after the waterboarding by the defendant in this case, Khalid Shaikh Mohammed, were tainted by torture, and whether they could be used as important evidence in an eventual trial.
The psychologists, James E. Mitchell and John Bruce Jessen, were called in to describe their use of “enhanced interrogation techniques” – including waterboarding, hitting a prisoner’s head against a wall, extreme isolation, sleep deprivation and forced nudity – in a secret sea. CIA prison network in 2002 and 2003 to “condition” inmates, as Dr. Mitchell testified, to answer questions when requested.
dr. Mitchell said the defendants had obtained their free will by the time they were questioned by FBI agents in Guantanamo Bay in 2007. The psychologist testified that even before Guantánamo, Dr. mitchell and mr. Mohammed sometimes sat together to chat while holding hands, as men from the Middle East sometimes do.
Defense attorneys say the five defendants in the case were still so afraid of being tortured again that they told FBI interrogators in Guantanamo Bay what the CIA had conditioned them to say. They have asked the judge to rule out the interrogations as the product of systematic abuse by the US government.
In the short term, the question is whether Mr. Mohammed can watch as Dr. Mitchell returns to court to testify in a closed session on national security. No date has been set for that session.
Defense attorneys also argue that because this is a death penalty case, the defendants are entitled to greater protections, including the right to attend secret testimony that they may have knowledge of. Prosecutors allege national security is at stake because the CIA still keeps certain secrets about its overseas black site program, which began in 2002 and ended in 2009.
The judge, Air Force Colonel Matthew N. McCall, inherited the question from his predecessor, Colonel W. Shane Cohen, who abruptly retired after Dr. Mitchell testified in public court for nine days in January 2020, and Dr. Jesse for one.
An Air Force prosecutor, Major Jackson T. Hall, said a person must have security clearance to attend a secret wartime court hearing, meaning both the public and the accused are barred. He mentioned only one exception: an accused terrorist can hear the classified information if it is something the accused terrorist has said.
He added that previous military judges had barred the defendants from secret preliminary investigations for the past seven years, and urged Colonel McCall not to deviate from that practice.
Major Hall accused defense attorneys of using “graymail,” essentially arguing that to get a fair trial, the government had to choose between revealing state secrets or being sanctioned by the courts, possibly including of a dismissal of the case.
Mohammed’s lawyer, Gary D. Sowards, said his team needed the defendant in court to hear classified evidence about the CIA’s black site program — and the psychologists’ role in it — to allow their questioning of escort the men, based on Mr Mohammed’s statements. experience as a prisoner of what he called the “International Gulag Archipelago of Torture Chambers” from March 2003 to September 2006.
“Mr. Mohammed is already aware of the horrific details of his torture and what happened to him,” said Mr. Sowards. “That’s what we’re talking about.”
Major Hall cited a similar exclusion from the 2002 to 2006 federal proceeding against Zacarias Moussaoui, an admitted aspiring hijacker in the September 11 attacks. During a period in which he represented himself, the prosecutor said, Mr Moussaoui was denied access to classified information beneficial to his defence. In that example, he said, Mr Moussaoui had a stand-by attorney who could see the classified information but could not tell the defendant about it.
Mr Sowards said the need for Mr Mohammed to hear the testimony live was made clear after the defendant was barred from the testimony of a former CIA interpreter who lied about his background and ended up working for a defense team. The defendants in the case recognized the interpreter during a court hearing in 2015 and then exposed his previous clandestine status in open court.
Reviewing his testimony, Mr. Sowards, was Mr. Mohammed disagreed with several of the interpreter’s statements, but defense attorneys were unable to challenge him on the spot. Instead, said Mr. Sowards, defense attorneys were debating whether they should try to reopen the interpreter’s statement to try and charge him.
No date has been set for the actual start of the trial of Mr Mohammed and four other men accused of conspiring in the 2001 attacks that killed nearly 3,000 people when terrorists piloted hijacked commercial aircraft and flew them into the World Trade Center, the Pentagon and a field in Pennsylvania.