Torture Is the Nasty Center of the 9/11 Case at Guantánamo

14 March, 2021
Francis Bacon Triptych inspired by the Oresteia of Aeschylus (photo courtesy Sotheby's)

Fran­cis Bacon Trip­tych inspired by the Oresteia of Aeschy­lus (pho­to cour­tesy Sotheby’s)


THE TRUTH IS, WE HAVE A RIGHT TO KNOW WHY WE’RE UNDER ARREST AND WHAT WE’RE BEING CHARGED WITH.

The writ of habeas cor­pus is in the Con­sti­tu­tion to shield us against unlaw­ful and indef­i­nite impris­on­ment. It is also in the Uni­ver­sal Dec­la­ra­tion of Human Rights. Habeas is a com­mon law right to pro­tect indi­vid­u­als from their gov­ern­ments, or ours. Thus, when the CIA grabs sus­pects abroad and ren­ders them to black sites, it vio­lates the Con­sti­tu­tion, the UDHR and com­mon law. To make a relat­ed point, recent­ly Alon Ben-Meir, an Amer­i­can senior fel­low at NYU who has been Israel’s top nego­tia­tor with Turkey, pub­lished an op-ed crit­i­ciz­ing Turkey’s human rights record for the mis­treat­ment of thou­sands of its polit­i­cal pris­on­ers. “The deten­tion and hor­ri­fy­ing tor­ture of thou­sands of inno­cent peo­ple for months and at times for years, with­out being charged, is hard to fath­om.” We agree, but any­one could just as eas­i­ly write, “The deten­tion and mal­treat­ment of Pales­tin­ian pris­on­ers in Israeli jails for months and years, with­out being charged, held at length under admin­is­tra­tive deten­tion, is hard­ly the modus operan­di of a west­ern democ­ra­cy.” Except that the Unit­ed States con­tin­ues to do the same in Guan­tá­namo. In our cen­ter­piece this month, Lisa Haj­jar takes us inside the war on ter­ror and the dystopia that is Guan­tá­namo. —Edi­tor

Lisa Hajjar

           

Since 2010, I have been to Guan­tá­namo 13 times. I can’t go as a schol­ar con­duct­ing research or a con­cerned cit­i­zen, so I go as a jour­nal­ist. When I tell peo­ple that I am head­ing off to Guan­tá­namo, respons­es tend to range from baf­fle­ment to curios­i­ty. High­ly edu­cat­ed and polit­i­cal­ly-aware acquain­tances have said things like: “oh, I for­got that place was still open” and “what’s going on there these days?” The sym­bol­ic nadir of the US “war on ter­ror” has fad­ed in pop­u­lar con­scious­ness with­out actu­al­ly fad­ing away. Guan­tá­namo is still open, and one of the things going on there (although dis­rupt­ed, like every­thing else, by the glob­al Covid pan­dem­ic) is the mil­i­tary com­mis­sion case against five men charged with plot­ting the ter­ror­ist attacks of Sep­tem­ber 11, 2001. Those attacks trig­gered the “war on ter­ror” which is now approach­ing its twen­ti­eth anniver­sary. The 9/11 case, which start­ed in 2008 and then restart­ed in 2011, was sup­posed to pro­vide jus­tice for the thou­sands of peo­ple killed on that ter­ri­ble day. 

The 9/11 case, although it gar­ners lit­tle media atten­tion or pub­lic inter­est, is an impor­tant bat­tle­ground for truth about tor­ture.

The 9/11 case mired in the pre-tri­al phase, mean­ing that it is nowhere near an actu­al tri­al. If you ask why, the answer is tor­ture. Tor­ture is also the reason—or one of the reasons—the gen­er­al pub­lic has for­got­ten about Guan­tá­namo. The post‑9/11 US tor­ture pro­gram is like a repressed nation­al mem­o­ry; it is repressed lit­er­al­ly through clas­si­fi­ca­tion and repressed fig­u­ra­tive­ly because there is no pub­lic script for reck­on­ing with the fact that Guan­tá­namo and the mil­i­tary com­mis­sions are tox­ic byprod­ucts of deci­sions to autho­rize coer­cive inter­ro­ga­tions, forced dis­ap­pear­ance, and pro­tract­ed incom­mu­ni­ca­do deten­tion. To give one exam­ple of this repres­sion, since 2017 the pros­e­cu­tors in the 9/11 case have refused to speak to the media. This black­out tac­tic is a means of avoid­ing any oblig­a­tion to give quotable answers to ques­tions about the role of tor­ture in the per­pet­u­al delays in the case. 

Inside the mil­i­tary com­mis­sion, how­ev­er, tor­ture is a con­stant top­ic as adver­saries argue over the dis­cov­ery of clas­si­fied infor­ma­tion, judi­cial rul­ings, pro­tec­tive orders that gov­ern the defense teams, and con­di­tions of con­fine­ment for the five men on tri­al. At a hear­ing on March 1, 2018, defense attor­ney Alka Prad­han summed up the sit­u­a­tion: “Tor­ture is…the nasty cen­ter of this case whether we like it or not, and we have to deal with it.” 

Tor­ture has to be a cen­tral fac­tor of the 9/11 case because the gov­ern­ment is seek­ing the death penal­ty against defen­dants who were dis­ap­peared into CIA black sites and bru­tal­ly tor­tured for years.

The pre­tri­al process in the 9/11 case has been dom­i­nat­ed by bat­tles over dis­cov­ery of infor­ma­tion about the CIA’s Ren­di­tion, Deten­tion, and Inter­ro­ga­tion (RDI) pro­gram. This kind of expo­sure is not what the agency bar­gained for when the kid­nap­ping and black site mis­sion was launched in the after­math of 9/11. The “log­ic” of the RDI pro­gram was not geared to the prospect of future tri­als but rather was guid­ed by the belief that coer­cive and vio­lent tac­tics would be effec­tive in acquir­ing “action­able intel­li­gence”; as for­mer Vice Pres­i­dent Dick Cheney explained: “Intel­li­gence offi­cers of the Unit­ed States were not…trying to get ter­ror­ists to con­fess to past killings; they were try­ing to pre­vent future killings.” 

Bush admin­is­tra­tion offi­cials had assured the CIA at the start of the “war on ter­ror” that sus­pect­ed ter­ror­ists who were cap­tured and trans­ferred to undis­closed loca­tions would nev­er see the light of day, and that the inter­ro­ga­tion meth­ods used on these “high val­ue detainees” (HVDs) would remain top secret for­ev­er. Those assur­ances were demol­ished by the Supreme Court’s 2006 rul­ing in Ham­dan v Rums­feld. The most crit­i­cal ele­ment of that deci­sion was the con­clu­sion that Com­mon Arti­cle 3 of the Gene­va Con­ven­tions, which pro­hibits tor­ture and out­rages on human dig­ni­ty, applies to all war-on-ter­ror detainees in US cus­tody over­seas. As a result of Ham­dan, the Bush admin­is­tra­tion was com­pelled to emp­ty the black sites. Four­teen HVDs were relo­cat­ed to Guan­tá­namo in Sep­tem­ber 2006, includ­ing the five now fac­ing pros­e­cu­tion for 9/11.

One imme­di­ate prob­lem the Bush admin­is­tra­tion faced was how to pro­tect the top-secret infor­ma­tion in the HVDs’ pos­ses­sion, name­ly their own mem­o­ries of being extra­or­di­nar­i­ly ren­dered, forcibly dis­ap­peared, and tor­tured by the CIA. To keep their embod­ied secrets secret, the HVDs are housed in a clan­des­tine facil­i­ty on the naval base, guard­ed by a spe­cial unit with top secu­ri­ty clear­ance. Camp 7 is func­tion­al­ly equiv­a­lent to a black site because its loca­tion, its cost, its fea­tures, and the iden­ti­ties of all per­son­nel who work there—including med­ical professionals—are clas­si­fied. The only rea­son we know the facil­i­ty is called Camp 7 is due to a redac­tion error.

A big­ger prob­lem was how to pros­e­cute peo­ple whose expe­ri­ences of CIA tor­ture are clas­si­fied? How can keep­ing secrets and seek­ing the death penal­ty com­min­gle in a process that bears any approx­i­ma­tion to legal jus­tice? In 2007, the Pen­ta­gon built a new high secu­ri­ty court­room designed specif­i­cal­ly for the 9/11 case. It has a sound-proof gallery at the back and an audio feed with a forty-sec­ond delay and a silenc­ing mech­a­nism to pre­vent “the public”—a cat­e­go­ry com­posed of jour­nal­ists, NGO observers and fam­i­ly mem­bers of vic­tims of 9/11 who trav­el to Guantánamo—from hear­ing clas­si­fied details about CIA’s tor­ture pro­gram dur­ing open court ses­sions. Anoth­er secret-keep­ing strat­e­gy, assist­ed by a pli­ant Con­gress, was to pass the Mil­i­tary Com­mis­sion Act of 2006 that would per­mit pros­e­cu­tors to use clas­si­fied evi­dence that defen­dants would not be able to see or challenge. 

Despite these abun­dant advan­tages for the gov­ern­ment, the Bush admin­is­tra­tion did not achieve the desired result of quick guilty ver­dicts. At the 2008 arraign­ment, Khalid Sheikh Moham­mad, the alleged “mas­ter­mind” of 9/11, announced that he reject­ed his gov­ern­ment-appoint­ed mil­i­tary coun­sel and would rep­re­sent him­self. Then he stat­ed that he would plead guilty imme­di­ate­ly on the con­di­tion that he go straight to exe­cu­tion. Sev­er­al of the oth­er defen­dants fol­lowed suit. This con­tin­gency of mar­tyr­dom by mil­i­tary com­mis­sion had not been antic­i­pat­ed and the case was derailed before George Bush left office. 

The Oba­ma admin­is­tra­tion inher­it­ed Guan­tá­namo, the mil­i­tary com­mis­sions, and the respon­si­bil­i­ty to keep the CIA’s secrets. When Pres­i­dent Oba­ma decid­ed to con­tin­ue using the com­mis­sions, Con­gress passed a revised MCA in 2009 which tight­ened the rules of evi­dence to exclude any use of coerced state­ments and guar­an­teed that defen­dants fac­ing the death penal­ty must be rep­re­sent­ed by learned coun­sel (lawyers with cap­i­tal tri­al expe­ri­ence). The 9/11 com­mis­sion case restart­ed in 2011.

Detail from

Detail from “The Gar­den of Earth­ly Delights,” Hierony­mus Bosch

This case presents an impos­si­ble tan­gle of con­flict­ing inter­ests with tor­ture at the nasty cen­ter. The five teams of defense lawyers, all of whom have top secu­ri­ty clear­ance, insist that detailed infor­ma­tion about what hap­pened to their clients in CIA cus­tody must be dis­cov­er­able, not least because in cap­i­tal cas­es height­ened due process applies. The pros­e­cu­tion insists that this tri­al is about the defen­dants’ alleged roles in the 9/11 ter­ror­ist attacks and what hap­pened to them after­ward (i.e., in black sites) does not bear on their involve­ment in these events. The CIA, as the orig­i­nal clas­si­fi­ca­tion author­i­ty (OCA) of black-site-relat­ed infor­ma­tion, has the deci­sion-mak­ing pow­er to deter­mine what kinds of infor­ma­tion are dis­cov­er­able; the agen­cy’s self-inter­est is not due process but the pro­tec­tion of its secret “sources and meth­ods.” The pros­e­cu­tion func­tions as a proxy for the CIA and enforces OCA deci­sions about what the defense teams need to know. In lieu of pro­vid­ing the defense with orig­i­nal mate­ri­als about the RDI pro­gram, pros­e­cu­tors produce—and the judge reviews and approves—summaries of select mate­ri­als that the CIA has deemed rel­e­vant and dis­cov­er­able; those sum­maries obscure spe­cif­ic dates and loca­tions and mask the iden­ti­ties of peo­ple with “unique func­tion­al iden­ti­fiers” and pseu­do­nyms (e.g., Inter­roga­tor 1, Dr. Shrek). 

Because the defense teams have access to some clas­si­fied infor­ma­tion about the CIA’s tor­ture pro­gram, they are regard­ed with sus­pi­cion as weak links in the chain of secre­cy. This has led to mul­ti­ple instances of gov­ern­men­tal mon­i­tor­ing and spy­ing on them. In 2014, the case was near­ly derailed when the defense teams learned that the FBI had tried to turn some non-lawyer mem­bers into infor­mants and had suc­ceed­ed in recruit­ing sev­er­al peo­ple on one of the teams. Although the pros­e­cu­tors had no role in these spy oper­a­tions, as the gov­ern­men­t’s rep­re­sen­ta­tives they had to argue, repeat­ed­ly, that the case is not too dam­aged to proceed. 

The con­flicts of inter­est have esca­lat­ed pre­cip­i­tous­ly over the last four years. In Sep­tem­ber 2017, pros­e­cu­tors issued a new pro­tec­tive order that imposed height­ened restric­tions on the defense teams’ pre­rog­a­tives to con­duct their own inves­ti­ga­tions. These restric­tions pro­hib­it them from inde­pen­dent­ly con­tact­ing any per­son who may have been asso­ci­at­ed with the CIA, although after some court­room wran­gling, excep­tions were made to the hand­ful of peo­ple whose CIA roles are now pub­lic infor­ma­tion. Pros­e­cu­tors also want­ed to restrict defense team mem­bers from trav­el­ing to coun­tries that host­ed black sites on the grounds that this could be deemed to con­firm clas­si­fied infor­ma­tion, despite the fact that the loca­tions of for­mer black sites are pub­licly avail­able through the report­ing by jour­nal­ists and human rights orga­ni­za­tion, law­suits in the Euro­pean Court of Human Rights, and pre-tri­al inves­ti­ga­tions by pros­e­cu­tors for the Inter­na­tion­al Crim­i­nal Court. Dur­ing the Jan­u­ary 2018 hear­ings, the chief pros­e­cu­tor, Gen­er­al Mark Mar­tins, defend­ed the restric­tions on defense teams as a nation­al secu­ri­ty neces­si­ty and cas­ti­gat­ed defense lawyers for try­ing to become their own “pri­vate attor­ney gen­er­al, or what­ev­er dis­em­bod­ied inves­tiga­tive author­i­ty they think they have out­side the com­mis­sion.”

The tan­gle of con­flict­ing inter­ests has come to engulf the FBI because of its role in pro­duc­ing osten­si­bly court-wor­thy evi­dence that the pros­e­cu­tion intends or hopes to use at tri­al. After the HVDs were trans­ferred to Guan­tá­namo in 2006 and plans got under­way to pros­e­cute them, the FBI was tapped as the gov­ern­men­t’s solu­tion to the prob­lem of how to get “clean” state­ments from peo­ple who had spent between three and four years in black sites. In Jan­u­ary 2007, FBI “clean teams” were dis­patched to Guan­tá­namo to inter­ro­gate the HVDs. The offi­cial nar­ra­tive about the FBI clean-team process goes as fol­lows: What­ev­er hap­pened to these men before they were trans­ferred to Guan­tá­namo is over but nev­er­the­less remains clas­si­fied. What­ev­er state­ments they made dur­ing their time in CIA cus­tody will not be used by mil­i­tary com­mis­sion pros­e­cu­tors. What­ev­er state­ments they made to FBI clean-team agents is court-wor­thy by virtue of the con­duct of inter­ro­ga­tions using con­ven­tion­al and law­ful means. 

This nar­ra­tive depends on the pre­sump­tion that the FBI was insti­tu­tion­al­ly sep­a­rate from the CIA and had not dirt­ied its hands after 9/11 by using or col­lud­ing in tor­ture. A wreck­ing ball hit this nar­ra­tive in Decem­ber 2017 when the defense teams were final­ly giv­en sev­er­al doc­u­ments per­tain­ing to the FBI clean teams. One of the doc­u­ments, a memo dat­ed Jan­u­ary 7, 2007 which set out clean team pro­ce­dures, revealed that the CIA con­trolled the process. The FBI agents were instruct­ed to doc­u­ment their inter­views with HVDs on a CIA-sup­plied lap­top and to sub­mit their inter­ro­ga­tion notes to the CIA for clas­si­fi­ca­tion review. If any­thing about tor­ture were to come up in these inter­views, agents would have to treat this as “com­part­ment­ed infor­ma­tion” and put it into a sep­a­rate document. 

People protest against

Peo­ple protest against “indef­i­nite deten­tions” at Guan­tá­namo Bay deten­tion cen­ter and Bagram prison, while in front of the White House, Fri­day, Octo­ber 24, 2014, in Wash­ing­ton. (AP Photo/Jacquelyn Martin)

But the taint of tor­ture goes fur­ther than CIA con­trol of the FBI’s inter­view process, as was revealed by FBI agents on the stand dur­ing the Decem­ber 2017 hear­ings. Under cross-exam­i­na­tion by Wal­ter Ruiz, learned coun­sel for Mustafa Haw­sawi, Agent Abi­gail Perkins tes­ti­fied that she had reviewed CIA black-site cables to pre­pare ques­tions and strate­gies for her inter­ro­ga­tion of Ruiz’s client. While this black-site leak­age into the process to obtain court-wor­thy evi­dence was not sur­pris­ing to the defense teams, this was the first time it was put on record in open court. When Ruiz asked Perkins whether she had taped the interview—which she con­duct­ed with­out an inter­preter despite the fact that Haw­sawi is not flu­ent in Eng­lish, she said no because the CIA ground rules pro­hib­it­ed it. These bomb­shell rev­e­la­tions dam­aged two illu­sions on which the gov­ern­men­t’s case depends: one, that evi­dence pro­duced by the FBI is untaint­ed by the CIA tor­ture pro­gram, and two, that “tor­ture time” can be sep­a­rat­ed from “post-tor­ture time.” 

The hear­ing on March 1, 2018, put the tor­ture-cen­tered tan­gle of con­flict­ing inter­ests on full dis­play. Defense attor­ney Prad­han had spent hun­dreds of hours over the two pre­vi­ous months review­ing and ana­lyz­ing the mate­ri­als about the CIA tor­ture pro­gram that were made avail­able to the defense through dis­cov­ery. She took the court­room podi­um to argue that because the flaws, errors, and gaps in these mate­ri­als were so great, the defense teams must be able to access the orig­i­nal doc­u­ments to do their own assess­ments. To illus­trate the defi­cien­cies, Prad­han con­trast­ed the pub­licly avail­able three-page chronol­o­gy of Gul Rah­man’s month-long deten­tion at a black site in Afghanistan before he died (of expo­sure) in 2002 with the clas­si­fied chronol­o­gy of her client Ammar al-Baluchi’s three-and-a-half-year deten­tion at mul­ti­ple black sites, which is one-quar­ter of a page. 

The judge at the time, Col. James Pohl, asked Prad­han if she was ask­ing him to recon­sid­er the sum­maries he had approved. (Under the MCA, the defense has no right to ask for recon­sid­er­a­tion.) She replied, “No, sir. I’m ask­ing you to com­pel the gov­ern­ment to pro­vide us all the orig­i­nal doc­u­ments.” Prad­han remind­ed Pohl of the recent­ly exposed col­lab­o­ra­tion between the FBI and the CIA, which “is rel­e­vant and mate­r­i­al” to the gov­ern­men­t’s case. She con­clud­ed, “So at a min­i­mum, the gov­ern­ment has spent near­ly six years since the arraign­ment, frankly, wast­ing our time.” 

Jef­frey Gro­har­ing, one of the pros­e­cu­tors, took the podi­um to defend the dis­cov­ery process and described the request for access to orig­i­nal mate­ri­als as an “extreme rem­e­dy” which he urged the judge to reject. The secrets con­tained in the orig­i­nal mate­ri­als, he explained, are “the most high­ly clas­si­fied infor­ma­tion that the gov­ern­ment has.… [I]t’s extreme­ly impor­tant that we pro­tect that infor­ma­tion.” Then he offered what was intend­ed to be an assuag­ing state­ment: “The orig­i­nal clas­si­fi­ca­tion author­i­ty [i.e., the CIA]…yesterday, issued guid­ance that would allow addi­tion­al dates to be pro­vid­ed in cer­tain mate­ri­als, not all dates.” 

James Con­nell, al-Baluchi’s learned coun­sel, explained to the judge that the defense teams need detailed and orig­i­nal infor­ma­tion about the defen­dants’ black site years not only to pre­pare mit­i­ga­tion argu­ments for the sen­tenc­ing phase if the men are found guilty, but also for the guilt-or-inno­cence phase of the tri­al. The defense teams’ objec­tive on this mat­ter is to sup­press state­ments the clients made to FBI agents as fruit of the poi­so­nous tree. 

After Con­nell spoke, Gro­har­ing returned to the podi­um to reit­er­ate the gov­ern­men­t’s posi­tion. He insist­ed that the defense teams don’t need orig­i­nal mate­ri­als because they have already been pro­vid­ed with enough information—17,000 pages of summaries—to “paint a very vivid pic­ture… as long as it’s teth­ered to reality…We’re not going to quib­ble… about whether Mr. Moham­mad was water­board­ed 183 times or 283 times. We, frankly, think that has lit­tle rel­e­vance to the com­mis­sion and the issues before it.” Gro­har­ing also said that the defense teams have an excel­lent source of the infor­ma­tion they seek: their clients.

James Har­ring­ton, learned coun­sel for Ramzi bin al-Shibh, respond­ed: “[S]aying …that we should focus on the guilt or inno­cence part of the case and not the sen­tenc­ing part…is total igno­rance of what cap­i­tal law is all about.” More­over, the pros­e­cu­tion has no right to “tell the court or us” how to defend our case. Har­ring­ton described Gro­har­ing’s asser­tion that the defendants—whose tor­ture con­tin­ues to affect them profoundly—can be reli­able sources of clas­si­fied infor­ma­tion as “just preposterous.” 

Prad­han weighed in: “[T]here is a straight line between what we’re ask­ing for”— orig­i­nal mate­ri­als about the black site years—and sub­se­quent state­ments made to the FBI that the gov­ern­ment is try­ing to use to exe­cute her client and the oth­er four defen­dants. To illus­trate the point, Prad­han read from a declas­si­fied account of one short peri­od of al-Baluchi’s expe­ri­ence in the black sites: Pri­or to his inter­ro­ga­tion on May 20, 2003, he “had been kept naked in the stand­ing, sleep-depri­va­tion posi­tion since his ini­tial inter­ro­ga­tion ses­sion” three days ear­li­er. He “was sig­nif­i­cant­ly fatigued dur­ing this ses­sion.… His resis­tance pos­ture had begun to decline. He appears to be answer­ing ques­tions truth­ful­ly. He was pre­sent­ed naked for this ses­sion. He was allowed to sit in reward for his increased coop­er­a­tion.… In any case, he was able to com­plete the inter­view suc­cess­ful­ly despite the sleepi­ness that he exhib­it­ed.” Then she quot­ed a CIA con­trac­tor psy­chol­o­gist involved in black site inter­ro­ga­tions: al-Baluchi “is still devel­op­ing a sense of learned help­less­ness which is con­tribut­ing to his com­pli­ance, and the team will con­tin­ue to lessen the inten­si­ty of the inter­ro­ga­tion ses­sions rel­a­tive to [his] coop­er­a­tion.” Prad­han con­clud­ed her com­ments about the long-term con­se­quences of this treat­ment by cit­ing the dec­la­ra­tions of two neu­ro­sci­en­tists that “mem­o­ry is changed by torture…brain func­tion is changed by torture.” 

Dur­ing the hear­ings in July 2018, sev­er­al of the defense teams explained to Judge Pohl that the height­ened restric­tions had shut down their abil­i­ties to con­duct their own inves­ti­ga­tions which, pri­or to the pre­vi­ous Sep­tem­ber, had been going well. The pros­e­cu­tors were adamant that the restric­tions were nec­es­sary to pro­tect state secrets and that the work-arounds on offer should be ade­quate. These work-arounds would require the defense to give the pros­e­cu­tion iden­ti­fy­ing infor­ma­tion (e.g., pseu­do­nyms) of CIA-asso­ci­at­ed per­son­nel they want to inter­view so that the pros­e­cu­tion could con­tact those indi­vid­u­als to ask whether they would be will­ing to speak to defense team inves­ti­ga­tors. If they say no, that option is closed, and if they say yes, the CIA would then instruct those indi­vid­u­als about what infor­ma­tion and top­ics can and can­not be dis­cussed. The pros­e­cu­tors were unwill­ing to budge on defense appeals to restore the sta­tus quo ante.

On August 17, 2018, Judge Pohl issued a rul­ing that was a stun­ning and rare vic­to­ry for the defense: he ordered the sup­pres­sion of all FBI clean team evi­dence as a sanc­tion for gov­ern­ment pro­hi­bi­tions on defense inter­views with CIA employ­ees and con­trac­tors involved with the tor­ture pro­gram. Then Pohl retired. His suc­ces­sor, Col. Kei­th Parrella—who nev­er read through the reams of court records and case tran­scripts after he was appoint­ed, set aside Pohl’s rul­ing to sup­press the FBI evi­dence and in May 2019 he ordered new briefs to (re)consider whether to per­mit the gov­ern­ment to use state­ments elicit­ed by the FBI clean teams. Then Par­rel­la announced that he was leav­ing for a dif­fer­ent assignment. 

The third judge on the case, Colonel Shane Cohen, made head­lines in August 2019, a month into his new job, when he set a tri­al start date of Jan­u­ary 11, 2021. By the end of that month, he acknowl­edged that the case’s com­plex­i­ties and unre­solved issues might make that time­frame unre­al­is­tic. Dur­ing the three weeks of hear­ings in Sep­tem­ber 2019, there was a unique turn in the case. Unlike pre­vi­ous hear­ings which have been con­sumed by motions fights over the dis­cov­ery of infor­ma­tion, pro­tec­tive orders, and con­di­tions of con­fine­ment for the five men on tri­al, this time, there were live wit­ness­es to tes­ti­fy and be cross-exam­ined, includ­ing the two FBI agents who had tes­ti­fied in Decem­ber 2017. 

At the start of the hear­ing on Sep­tem­ber 16, 2019, Con­nell asked Judge Cohen if he could make a brief state­ment before the first FBI wit­ness was called to the stand. Per­mis­sion grant­ed. “Sir,” he said,

I would be remiss if I did not remark [that today is the eigh­teenth anniver­sary] 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.

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 autho­riza­tion 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 sup­pres­sion hear­ings that began that Sep­tem­ber rep­re­sent­ed a major turn from defense teams’ strug­gles to get infor­ma­tion that the gov­ern­ment has with­held to a new strug­gle to exclude state­ments the gov­ern­ment wants to use on the grounds that they are fruit of the poi­so­nous tree. For Con­nell, one of the objec­tives was to illu­mi­nate that the FBI was far more impli­cat­ed in the CIA tor­ture pro­gram than is pub­licly known. 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 HVDs in CIA cus­tody in the black sites, they sent ques­tions aris­ing from their own inves­ti­ga­tions to be asked by CIA inter­roga­tors while the tor­ture pro­gram was oper­at­ing at full steam.

Dur­ing the Octo­ber 2019 hear­ings, among the wit­ness­es were sev­er­al indi­vid­u­als con­nect­ed to the secre­tive Camp 7 whose loca­tion on the base and the iden­ti­ties of those who work there are clas­si­fied. One of the facts that came out 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.

The last hear­ings before COVID ground the world to a halt were in Jan­u­ary 2020. The wit­ness­es includ­ed the two psy­chol­o­gists con­tract­ed by the CIA to run oper­a­tions in the black sites, James Mitchell and Bruce Jessen, who were the “mas­ter­minds” of the tor­ture pro­gram. They had “reengi­neered” tech­niques from the mil­i­tary’s SERE train­ing pro­gram (Sur­vival, Eva­sion, Resis­tance, Escape) for the pur­pose of reduc­ing HVDs to a state of “learned help­less­ness.” Mitchel­l’s clas­si­fied iden­ti­ty was first revealed by Jane May­er in The New York­er in 2005, and both were fea­tured in a 2007 exposé by Kather­ine Eban in Van­i­ty Fair. For years after they were out­ed, the duo kept a res­olute­ly low pro­file. That changed in April 2014 amidst the fight over the fate of the Sen­ate Select Com­mit­tee on Intel­li­gence report about the CIA’s RDI pro­gram. Mitchell gave his first inter­view to the Guardian and ever since he has been a vocif­er­ous defend­er of the the­o­ries of learned help­less­ness he put into prac­tice in the black sites, which he claims was done in the ser­vice of his country.

On the stand in Jan­u­ary 2020, Mitchell tes­ti­fied about his objec­tives and tech­niques: If detainees’ psy­ches were destroyed, they would be inca­pable of resist­ing inter­roga­tors’ demands for infor­ma­tion about ter­ror plots and net­works. The human exper­i­men­ta­tion that Mitchell described (albeit not using that phrase) is now part of the record; he explained that when he inter­ro­gat­ed Khalid Sheikh Moham­mad, he found that water­board­ing was­n’t an effec­tive method but “walling” (smash­ing a detainee into a wall while wear­ing a padded chain around his neck) worked quite well. This infor­ma­tion rever­ber­at­ed back to a hear­ing in April 2018, when 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. 

The con­flicts of inter­est in the 9/11 case could go a long way toward being untan­gled if the gov­ern­ment made a choice: Either pri­or­i­tize the CIA’s secrets and take the death penal­ty off the table or con­tin­ue to seek the death penal­ty and respect the adver­sar­i­al process by enabling the defense to access more information—including, for exam­ple, the full SSCI report. The pros­e­cu­tors reject the notion that they must make such a polit­i­cal­ly unpalat­able choice and have res­olute­ly refused the plea bar­gain option. From the gov­ern­men­t’s point of view, any­thing short of guilty ver­dicts and death sen­tences would seem like a tremen­dous loss in a case of such mon­u­men­tal importance. 

The 9/11 case, although it gar­ners lit­tle media atten­tion or pub­lic inter­est, is an impor­tant bat­tle­ground for 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 9/11. It has also dam­aged the pre­ten­tions 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 Guantánamo. 

The incom­men­su­rable truth is that the 9/11 defen­dants are accused of caus­ing the deaths of thou­sands of peo­ple, and they are 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.

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Lisa Hajjar is a professor of sociology at UCSB. Her work focuses mainly on issues relating to law and conflict, specifically the enforcement of international human rights and humanitarian laws in the context of armed conflicts. Topically, her research addresses military courts and occupations, torture and targeted killing. Publications include Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (UC Press, 2005) and Torture: A Sociology of Violence and Human Rights (Routledge 2013). She is currently working two books, one titled The War in Court: The Inside Story of the Fight against US Torture in the “War on Terror” which is under contract with University of California Press, and the other titled Genealogies of Human Rights in the Arab World, coauthored with Omar Dewachi. Follow her @lisahajjar.