Potential Setback for Prosecutors in GITMO Prisoners’ Tribunals

An aerial view of Bulkeley Hall at Naval Station Guantanamo Bay, Cuba.

Last Friday a military commission judge gave government prosecutors a possible major setback telling them they may not be able to use their key pieces of evidence against the five men, including Khalid Shaikh Mohammed, (KSM), accused of conspiring to aid in the 9/11 attacks, meaning the “statements they made to F.B.I. interrogators shortly after their transfer out of the C.I.A.’s ‘black site’ prisons nearly a dozen years ago,” New York Times reported.

Defense lawyers have long maintained for there to be a fair death penalty trial they must be able to “thoroughly investigate the torture of their clients at the hands of the C.I.A,” but the government maintains that it is a matter of national security they are allowed to keep certain aspects of that time a secret, like the C.I.A ops identities.

It also involves the techniques involved used to gain evidence, such as statements, out of the men that would be used as evidence against them in court. Their defense lawyers’ arguments also revolve around techniques the F.B.I used to interrogate the men used to gather statements from them after they had left C.I.A.’s custody.

For the government’s part, to mitigate what evidence was gained by the C.I.A. to keep from tainting the F.B.I.’s evidence for court, they sent in what was called a “clean team,” meaning the F.B.I. interrogators “did not know what the detainees had previously said” and they were to “start over with questioning them.”

But because their clients were in the custody of the C.I.A for 3-4 years, the defense argues, the effects from the length of time would mar the FBI’s interrogations as well so they believe they should be able to have further access to more of the details of their client’s time with the CIA because restrictions were placed on the defense lawyers forbidding them from approaching any agency’s personnel and prosecutors only offered summaries “of what guards and doctors had seen and done” maintaining that was sufficient.

However, in a copy of the ruling the NYTs was able to obtain, they reported Col. Pohl disagreed with the government, saying, “those summaries were not an adequate substitute.”

While Col. Pohl did agree to uphold the rules the government set on defense lawyers involving the CIA,” he “suppressed the F.B.I.’s statements as evidence because the rules were too restrictive for a fair fight over their admissibility,” writing that the summaries “will not provide the defense with substantially the same ability to investigate, prepare and litigate motions to suppress the F.B.I. clean team statements”

Lawfare’s Sarah Grant reports that the five defendants are Khalid Shaikh Mohammad [self-described architect of the 9/11 plot], and co-defendants Walid bin Attash, Mustafa al-Hawsawe, Ramzi Binalshibh, and Ammar al-Baluchi (aka Ali Abdul Aziz Ali), and that the directive for the restrictions on the defense lawyers came from the Department of Defense’s September 2017 guidance.

Grant further summarized Col. Pohl’s ruling.

“In sum, Judge Pohl denied the defense motion for discovery and witness information in AE 524Q (AAA); denied the defense motion to dismiss, or alternatively, to compel witnesses for interview in AE 524 (AAA); granted in part the government’s motion for a protective order in AE 524L (Gov); and barred the government’s introduction of the FBI clean-team statements for any purpose. The government has not yet indicated whether it intends to appeal Judge Pohl’s ruling, though this seems likely. The next oral argument session in the 9/11 military commission is scheduled for Sept. 10-14.”

Lawfare, 8/19/2018

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