The following guest-post was written by Kate Gibson, who has been representing accused before the international criminal courts and tribunals since 2005, including as co-counsel for Radovan Karadžic and Charles Taylor, and as lead counsel for Justin Mugenzi before the ICTR. She is currently the co-counsel of Bosco Ntaganda before the ICC, where she also represented Jean-Pierre Bemba between 2009 and 2018. She was an observer to the 9/11 proceedings before the Military Commission in February 2020 as part of the ADC-ICT’s Guantánamo Bay Observer Program.

A detainee at the US detention center in Guantanamo Bay is escorted to an interrogation by military guards (Photo: Associated Press)

Almost 20 years after the event, five men are facing charges for their alleged role in the hijackings that killed nearly 3,000 people on September 11, 2001. The U.S. Government has charged the group of five accused – including the alleged 9/11 “mastermind” Khalid Shaikh Mohammed – with terrorism and murder as a war crime, among other counts. This is a capital case, with the Government seeking the death penalty, and one that exposes the all-too thin line between the legitimate pursuit of accountability and the (ab)use of defendants’ rights to reach the desired result.

The charges would have been readily prosecutable in U.S. Federal Court. In fact, some of the accused were first indictedin the Southern District of New York. Ultimately, the proceedings were carved out of the domestic legal system and are now being conducted offshore before a U.S. Military Commission in Guantánamo, Cuba.

From its peak of 780 detainees in 2005, 40 people remain incarcerated at Guantánamo, a Naval Base just over 100 square kilometres in size, located in a steamy outpost at the southeastern tip of Cuba. At a current annual cost of USD 13 million per inmate, some of the 40 who remain are “forever detainees”, who will never be charged, but will be released at the conclusion of the “War on Terror”.

The Military Commissions are essentially hybrid courts; a cross between the U.S. federal court system and a military court-martial. They have been controversial since inception. Attacked for their perceived incompatibility with international fair trial standards and on the basis that they are not ‘regularly constituted courts’ as required by Common Article 3 of the Geneva Conventions, the narrative of the Commissions being a “failed experiment” has taken hold, and is proving difficult to shake.

The fair trial concerns are neither minor nor peripheral. Under the Military Commissions Act (2009), the presumption of innocence has been significantly weakened (if not obliterated) by personal jurisdiction being triggered by a determination that the accused are “unprivileged enemy belligerents”; namely those who have engaged in or materially supported hostilities against the U.S., or were part of al-Qaeda at the time of the alleged offence. The U.S. position is that any attack on U.S. forces is a war crime, and that any support of hostilities or membership in al-Qaeda can be construed as supporting terrorism. As such, the presumption of innocence is effectively a legal fiction.

Exculpatory evidence is frequently withheld on the basis that it is “classified”, despite the lead Defence lawyer on each team (the “learned counsel”) having a security clearance of at least “top secret”. Wildly permissible evidential rules permit the admission of illegally-obtained evidence seized outside the U.S., as well as statements by the accused on the grounds of alleged coercion or compulsory self-incrimination.

Add to this last week’s revelation that Presiding Judge Colonel W. Shane Cohen granted a request from the Government to use a “device” in the courtroom, to be hidden from the Defence, allowing the CIA and other “Original Classification Authorities” (“OCAs”) to follow the proceedings in real-time and communicate directly with the Government lawyers. The OCAs can then prompt the Government lawyers to ask the Court Security Office (CSO), who sits beside the Presiding Judge, to stop evidence for reasons of national security, or to prevent potential “spills” of classified information. Defence teams first noticed the device – a small silver tablet – during the cross-examination of CIA psychologist Dr. James E. Mitchell, who co-developed the Agency’s “enhanced interrogation program”. Suspicions were raised that the device could communicate with third parties outside the courtroom, after Government lawyers were unable to explain why they had asked for an interruption to the evidence.

While conceding he was wrong to authorise real-time contact between the Government and OCAs ex parte, Judge Cohen insisted the device does nothing more than leverage technology to prevent “spills” of classified information, and reacted angrily to Defence submissions that apparent intelligence agency disruption undermines a fair trial. Given that the CSO does not consult with these OCAs before preventing evidence from entering the record, the potential for abuse is clear. Allowing third parties to unilaterally censor witnesses from outside the courtroom, introduces another layer of state control to the proceedings that is difficult to reconcile with their purported independence.

In the same heated exchange, Judge Cohen insisted the device was not being used to spy on Defence teams, and said he would “dismiss the charge without thinking twice about it” if the Government was found to be monitoring Defence communications. This is a significant statement in a case where, in 2013, defence teams discovered that the smoke detectors in attorney-client meeting rooms were in fact listening devices; in 2014 the FBI attempted to recruit a defence team member as a confidential informant; and in 2015, one of the accused identified a courtroom translator as a former interpreter from a CIA black site, following which the Government chief prosecutor Brigadier General Mark Martins accused Defence lawyers of failing to do their “due diligence” in not having identified him earlier.

Against this backdrop, the question becomes why has this irregular hybrid procedure been adopted for arguably one of the most important trials in U.S. criminal history? Why invent new permissive evidential rules, and weaken due process protections and fair trial guarantees which enjoy near-universal recognition among states? The answer cannot lie in the scale and gravity of the crimes themselves; U.S. Prosecutor Robert H. Jackson famously opened the International Military Tribunal at Nuremberg by imploring those trying the accused to “never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow.” Internationally, accused have been tried and convicted by U.N. tribunals for genocide in Rwanda and the former Yugoslavia, where ethnically-driven violence killed over a million people, without the same systemic compromise of fair trial standards.

One plausible explanation is that the Government case rests in significant part on information obtained through “enhanced interrogation” techniques that would be inadmissible before a U.S. Federal Court. The Commissions’ more permissive evidential rules potentially allow for its admission. A legal system created to circumvent fair trial safeguards in order to accommodate the actions of the state will always run the risk of being plagued with issues of legitimacy, perceived or otherwise. But this gives rise to a bigger problem; the extent to which the years of “enhanced interrogation” of the five accused during the “Rendition, Detention and Interrogation Program”, at CIA black sites, undermines the Government case in a larger sense.

That the accused were subjected to years of enhanced interrogation is now a matter of evidence in the case. CIA psychologist Dr. Mitchell who, together with his partner Dr. John Bruce Jessen, developed and oversaw the CIA’s enhanced interrogation program (at a cost to the U.S. taxpayers of over USD 80 million), appeared as a pre-trial witness in late January 2020.

A former air force psychologist, Dr. Mitchell’s testimony echoed the confronting images drawn by Abu Zubaydah, the first prisoner known to undergo “enhanced interrogation”, published by the New York Times in December 2019. He described the techniques he developed and witnessed, in order to induce “learned helplessness” among detainees, a concept more commonly associated with training dogs, where the subjects come to accept that their situation is inescapable. Waterboarding (being mock execution by near-drowning), forced anal rehydration, painful stress positions, aggressive scrubbing of genitals, detainees hung from chains being forced to defecate in nappies, and being slammed against walls were among the techniques recommended and employed. Confirming that Khalid Shaikh Mohammed had been waterboarded 183 times, Dr. Mitchell informed the Commission that: “just so you’d know, I’d get up today and do it again”. He testified just metres away from the five accused who now suffer from a range of physical handicaps stemming from prolonged interrogation, some of which are visible to observers in the public gallery.

In any other world, testimonial evidence detailing this kind of treatment at the hands of the state would be the stuff of Prosecution nightmares. Which begs the question, why is this evidence even being elicited? The answer being, while “confessions” taken in CIA black sites have been thrown out, the Government’s central remaining evidence are a set of statements made by the accused in 2007 to FBI investigators, after being transferred to Guantánamo. The Government argues that the FBI statements were taken by “clean teams”, removed from prior acts of torture. As such, the statements are untainted and admissible in the proceedings.

The Defence is seeking their suppression, arguing that the FBI “clean teams” were actually engaged in “one continuous course of conduct to obtain statements by torture and other cruel and inhuman, degrading treatment”. The Defence has made reference in public hearings to evidence of the FBI interrogations mirroring those conducted at CIA black sites; with accused being subjected to the pre-interview rituals of forced shaving, restrictive diets, and having recorded screams broadcast into their cells. Under these circumstances, the Defence submits that the FBI interrogations cannot be considered voluntary, particularly given that after their conditioning in the black sites, the accused did not believe they had the option of staying silent, or deviating from prior statements given to the CIA.

The Government could presumably abandon its reliance on these 2007 FBI statements and thereby limit (or eliminate) the evidence of enhanced interrogation from the case on the merits. That the Government is not, indicates the importance of these statements to its case. As was seen during the trials of those accused in Rwanda, the former Yugoslavia and now at the ICC, while crime-base evidence is often relatively easy to find and present, the “linkage” evidence tying the accused to the crimes presents a far greater challenge. The Government’s insistence on the statements’ admissibility may also demonstrate the impossibility of disentangling a much wider body of evidence from the information received as a result of enhanced interrogation.

The prohibition against torture is a jus cogens norm from which no derogation is permitted. The U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), with its 152 states parties including the U.S., provides that “no exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.” In line with its obligations under Articles 4 and 5 of the CAT, the U.S. has enacted 18 U.S.C. §2340A, a federal statute that criminalizes torture, including attempts and conspiracy to commit torture outside the United States.

Dr. Mitchell’s position that the enhanced interrogation techniques did not amount to torture runs counter to the widely accepted position that it does, as well as President Obama’s 2014 acknowledgement that “we tortured some folks”. Regardless, Article 16 of the CAT also obliges the U.S. to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture… when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” And this is before considering the multitude of other human rights treaties and instruments which also prohibit not only torture, but cruel, inhuman or degrading treatment. Notably, these prohibitions continue to apply during both international and non-international armed conflicts under Common Article 3 of the Geneva Conventions.

These prohibitions apply even when the stakes are high. When rules protecting defendants are repeatedly bent, and otherwise inadmissible evidence is allowed into the record, the process moves from being a criminal trial, to something else; merely an exercise in convicting accused.

It is unlikely that the 9/11 proceedings will be able to extricate themselves from the narrative of “enhanced interrogations” or its graphic imagery. The very structure and governing instruments of the Military Commissions appear to have been molded to fit around these underlying and preceding events. Whether the specter of the years of black site renditions can ever lift from the proceedings, or indeed Guantánamo itself, is yet to be seen. Certainly for the moment, it maintains a palpable presence.

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For updates on the progress of the 9/11 Military Commission proceedings, follow Carol Rosenberg, Alka Pradhan, Gitmo Watch, September Eleventh Families for Peaceful Tomorrows, and the ADC-ICT’s Observer Reports.