GUANTÁNAMO BAY, Cuba — A defense lawyer on Wednesday invoked the bedrock American right to confront one’s accuser as he asked a military judge to permit the accused mastermind of the Sept. 11, 2001, attacks to attend secret testimony by two psychologists who waterboarded him 183 times.
This argument illustrates the on/off-again nature war crimes proceedings. The rules generally exclude defendants from classified testimony during the pretrial phase.
Both of the psychologists were former C.I.A. In January 2020, the contractors began to testify in open court. Their return to court to testify has been delayed due to the fact that the judge who heard it abruptly resigned two months later and partly because of the pandemic which paralyzed proceedings for more than 500 consecutive days.
The most important issues are whether Khalid Shaikh Mohammed’s waterboarding admissions, years after the incident, were tainted with torture and whether they could be used as evidence in an eventual trial.
The psychologists, James E. Mitchell and John Bruce Jessen, were called to describe their use of “enhanced interrogation techniques” — which included waterboarding, bashing a prisoner’s head into a wall, extreme isolation, sleep deprivation and forced nudity — in a secret overseas C.I.A. prison network in 2002 and 2003 to “condition,” as Dr. Mitchell testified, captives to answer questions on demand.
Dr. Mitchell said that the defendants had gained their free will by the time they were questioned by FBI agents at Guantánamo Bay in 2007. The psychologist testified that even before Guantánamo, Dr. Mitchell and Mr. Mohammed would at times sit together and chat while holding hands, as Middle Eastern men sometimes do.
Defense lawyers argue that the five defendants in the case were still so fearful that they could be tortured again that they told FBI interrogators at Guantánamo Bay what the C.I.A. They were forced to say what they were told by the C.I.A. They have asked the judge not to allow them to interrogate the subject of systematic U.S. Government abuse.
In the short-term, it is unclear if Mr. Mohammed will be able to watch Dr. Mitchell return to the court to testify in closed national security sessions. The date has not been set.
Defense lawyers also claim that the death penalty case gives defendants greater protections. They can attend secret testimony and have access to any information they might have. The C.I.A. is a threat to national security, the prosecution argues. Some secrets remain about the C.I.A.’s overseas black site program. It began in 2002 and ended by 2009.
Col. Matthew N. McCall, Air Force judge, inherits the question from Col. W. Shane Cohen (previously Col. W. Shane Cohen), who abruptly retired after Dr. Mitchell had testified in open court for nine days in January 2020 and Dr. Jessen for one.
Maj. Jackson T. Hall, a prosecutor in the Air Force, stated that a person must have security clearance to attend a classified court session. This means that both the defendants and the public are barred from the session. He cited just one exception — an accused terrorist can hear the classified information if it is something that the accused terrorist said.
He said that prior military judges had excluded defendants from classified pretrial proceedings for the past seven-years and urged Colonel McCall never to change that practice.
Major Hall accused defense lawyers of engaging in “graymail,” essentially arguing that, in order to achieve a fair trial, the government had to choose between disclosing state secrets or being sanctioned by the judge, possibly including a dismissal of the case.
Mr. Mohammed’s lawyer, Gary D. Sowards, said his team needed the defendant in court to hear secret evidence about the C.I.A. black site program — and the psychologists’ role in it — to guide their questioning of the men, based on Mr. Mohammed’s experience as a prisoner of what he called the “international gulag archipelago of torture chambers” from March 2003 to September 2006.
“Mr. Mohammed already knows about the grisly details of his torture and what happened to him,” Mr. Sowards said. “That’s what we’re talking about.”
Major Hall cited a similar exclusion from federal proceedings against Zacarias Moussii (an admitted aspiring hijacker in Sept. 11 attacks) from 2002 to 2006. The prosecutor stated that Mr. Moussaoui was denied access the classified information favorable to his defence during a period where he represented himself. He said that Mr. Moussaoui could have access to classified information but not tell him about it.
After the defendant was expelled from the deposition by a former C.I.A., Mr. Sowards stated that Mr. Mohammed needed to hear the testimony live. Interpreter who lied about his past and ended up working as a defense team member. The defendants in the case recognized and exposed the prior clandestine status of the interpreter in court in 2015.
Upon reviewing his testimony, Mr. Sowards said, Mr. Mohammed took issue with several of the interpreter’s statements but defense lawyers were unable to challenge him on the spot. Instead, Mr. Sowards said, defense lawyers were debating whether to seek to reopen the interpreter’s deposition to try to impeach him.
The date for the actual commencement of the trial of Mr. Mohammed, four others and other men accused of conspiring to carry out the 2001 attacks that claimed nearly 3,000 lives when hijacked commercial aircrafts crashed into the World Trade Center and Pentagon.
Source: NY Times
