Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

The five alleged 9/11 defendants currently being held at Guantanamo Bay where they have been detained since 2006, are currently preparing their defenses for trials that are scheduled for September 2014.  All five defendants have been subjected to what the United States government called enhanced interrogation techniques at CIA black sites even before they got to Gitmo.

“Five men are suspected to have planned the 9/11 terrorist attacks. The accused individuals are suspected 9/11 mastermind Khalid Sheikh Mohammed and four coconspirators: Walid bin Attash, Ramzi bin al-Shibh, Ali Abd al-Aziz Ali (Ammar al-Baluchi) and Mustafa Ahmed al-Hawsawi. Specifically, they are charged with eight crimes: conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism. They are being tried in front of a military commission at Guantanamo Bay Naval Station in Cuba, which is where the men have been detained since September 2006.” Truth-Out

While these men may be guilty of the crimes that they are charged with, it is important to review just what our government did to these men in an attempt to obtain actionable intelligence and to “sell” the Iraq war to the United States public and the world.  The torture techniques did not provide any substantial intelligence.

“Not only did torture violate domestic and international law but it also produced faulty intelligence that stymied counterterrorism operations. In addition to Abu Zubaydah and Ibn al-Sheikh al-Libi, Khalid Sheikh Mohammed gave false intelligence to interrogators. Mohammed knew Osama bin Laden very well. While in US custody, he was tortured to reveal the location of the al-Qaeda founder and leader. It did not work. The key piece to finding bin Laden’s location in Abbottabad, Pakistan, and his ultimate killing by US Navy SEALs, in cooperation with the CIA, was the identity of his courier, Abu Ahmed al-Kuwaiti. Mohammed knew that courier.

But when Mohammed was tortured, he “repeatedly misled” interrogators about the courier’s identity,” reported Scott Shane and Charlie Savage in The New York Times. Investigative blogger Marcy Wheeler, on May 3, 2011, pointed out that if Mohammed revealed the true identity of the courier, “Bush might have gotten OBL [Osama bin Laden] 8 years ago.” Mohammed also lied about bin Laden’s location, which hindered efforts to find the al-Qaeda founder.” Truth-Out

Now that the government is finally getting around to provide a judicial commission, just how does the fact that these defendants were severely tortured and mistreated during their detention at CIA black sites around the world, impact on the pending military commissions?

At the October pretrial hearings the defense teams argued that the court’s protective gag order does not allow them to fully discuss the allegations against their clients and to discuss the torture that was inflicted on these men by the United States government and/or its agents.

“The defense lawyers argued the protective order’s restrictions undermine US obligations under the Convention Against Torture and effectively “silence” the defendants from speaking out about the torture they experienced. They urged the judge, Army Col. James Pohl, to either drop the death penalty or dismiss the case. Pohl, however, seemed perplexed as to what he could do. Even if the protective order were eliminated, the information in question would still be classified and the lawyers forbidden from disclosing it to outside parties. That’s because the judge does not have the authority to declassify information – that power comes from the executive branch.” Adam Hudson

The judge at the Military Commission pretrial hearing did not rule on the motion concerning the defense team’s requests to allow for the full disclosure of the torture that their clients endured at the governments hands.  However, he did order that the government must turn over all records and correspondence between US authorities and the International Red Cross about the conditions at Guantanamo Bay which may disclose some of the illegal interrogations and mistreatment.

If evidence obtained through torture is not admissible in these Military commissions, how does the government intend on producing enough evidence to convict these defendants?  The answer to that question lies in the so-called Clean Teams sent in to re-interrogate the defendants after the torture was stopped.  The Government claims that any information obtained after the torture was halted is unrelated to the previous years of torture and severe interrogation methods.

“Evidence obtained through torture is not allowed in the military commission. However, coerced evidence is permitted. In late 2006, FBI and military interrogators, known as the “clean team,” interrogated the five suspects to collect “virtually the same information the CIA had obtained” from them during their years in CIA black sites, according to a February 2008 Washington Post report. The goal was to collect statements that were “clean” from torture. “To ensure that the data would not be tainted by allegations of torture or illegal coercion, the FBI and military team won the suspects’ trust during the past 16 months by using time-tested rapport-building techniques,” the Post reported. The government is using these statements as evidence in the 9/11 case.

However, Bormann challenged the “clean team” statements’ validity on “60 Minutes.” “It’s like Alice going down the rabbit hole, right,” Bormann saidd. “You torture them for three years. You keep them in captivity after you stopped torturing them, in a place like Guantanamo Bay. And then you send in agents from the same government that tortured them for three years to take statements. And then, if you’re Gen. Martins, you say, ‘Well those are now clean.’ Guess what? They’re not.” ‘ Adam Hudson

It is interesting that the prosecution believes that the Clean Team approach can absolve the government’s significant and long-term abuse of these defendants.  The Fruit of the Poisonous Tree doctrine means nothing to the government.  If evidence was obtained through illegal means, including coerced interrogations, that evidence cannot be used in a criminal trial against the defendant.  While this doctrine is settled law, the government is attempting to circumvent it and hide the torture from the court and the public.

The bottom line is that the government tortured the defendants and is attempting to hide its culpability in that torture.  If the so-called Clean Team approach was as successful as the FBI claims, it seems obvious that the torture was not only illegal, but unnecessary.  How should Judge Pohl rule on the motion to allow defense teams to discuss and argue the torture used on their client?

If the attorneys cannot present evidence that evidence was obtained illegally, how can this Military Commission ever be considered to be legitimate?  Can any government sponsored judicial system be fair if defendants are not allowed to view the evidence that the prosecution is using to put them on trial for their lives?  Should these defendants be tried in a Criminal courtroom in the United States?  What do you think?

Additional sources: 60 Minutes video.