Guantánamo Judge Bans So-Called “Clean Team” Evidence in 9/11 Trial, Then Resigns

28.8.18

Col. James Pohl, the 9/11 trial judge, who has just announced his resignation, and the five Guantanamo prisoners (and former CIA "black site" prisoners) accused of involved in the 9/11 attacks.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Last Friday, August 17, a ruling of potentially huge significance took place at Guantánamo in pre-trial hearings for the proposed trial by military commission of the five men accused of involvement in the terrorist attacks of September 11, 2001, who include Khalid Sheikh Mohammed. All five men have been held at Guantánamo since September 2006, and, before that, were held and tortured in CIA “black sites” for up to three and a half years. 

Yesterday, just ten days later, the judge, Army Col. James L. Pohl, 67, who has been the judge on the case since the men were arraigned in May 2012, announced that he will retire on September 30 and named Marine Col. Keith A. Parrella, 44, to replace him. Giving notice of his intention, he stated, “I will leave active duty after 38 years. To be clear, this was my decision and not impacted by any outside influence from any source.”

Astonishingly, it is ten and half years since the US government first filed charges against the five men accused of involvement in the 9/11 attacks in the military commission trial system, which had been ill-advisedly dragged from the history books by Dick Cheney and his lawyer David Addington in November 2001, but had been ruled illegal by the Supreme Court in June 2006, in Hamdan v. Rumsfeld. The commissions were subsequently revived with Congressional backing, but struggled to establish any legitimacy throughout the rest of Bush’s presidency.

The Obama administration put the commissions on hold after Barack Obama took office in January 2009, but unwisely revived them in November 2009, despite Congress and the administration being warned — by critics, including some of Obama’s own officials — that the war crimes prosecuted in the commissions, focused particularly on providing material support for terrorism and some other charges, would be overturned on appeal, as they had been invented as war crimes by Congress, and were not internationally recognised (although, crucially, they were recognized as crimes in federal court).

In a series of embarrassing results, the convictions against two of the three men convicted under George W. Bush — Salim Hamdan and David Hicks — were overturned, and, in several rulings since 2013, most of the charges against the third man, Ali Hamza al-Bahlul, who was given a life sentence in November 2008 after a one-sided trial in which he refused to mount a defense — have also been quashed.

Five convictions took place under Obama, although all involved plea deals, and their legitimacy too has generally been called into question or overturned.

In the trials that are ongoing, a further complication has come to light, not involving the legitimacy or otherwise of war crimes, but involving the use of torture, and the seeming impossibility of successfully prosecuting prisoners who have been tortured.

This should have been obvious to the Bush administration officials who authorized the use of torture after 9/11, specifically in the network of “black sites” that the CIA established in countries including Thailand, Poland, Lithuania and Romania, but it took official years to understand how much they had damaged the possibility of any successful judicial outcome. When they did, they attempted to remedy it by sending in so-called “clean teams” of FBI agents to interrogate them without using torture, and with the intention of getting the men in question to repeat the statements they had made under torture in a non-coercive situation.

To the government’s disappointment, these are the statements that, last Friday, Judge Pohl ruled could not be used by prosecutors. 

As Charlie Savage explained for the New York Times, “The decision brought to a head a long-running and potentially irreconcilable tension in the case: Defense lawyers say they need to thoroughly investigate the torture of their clients at the hands of the CIA for there to be a fair death penalty trial. But the government says there is a national security imperative to keep certain facts related to that period — like the identities of CIA personnel who worked at certain prisons — secret.”

Savage stated that the FBI’s “clean team” agents “did not know what the detainees had previously said,” which strikes me as unlikely, although, even if it were the case, lawyers for the men subjected to CIA torture have always had strength in their argument that, as Savage put it, “the lingering effects of their clients’ previous torture tainted those interrogation sessions, too.”

As Savage proceeded to explain, “To make that case, defense lawyers said they needed to investigate what had happened to their clients in CIA custody independently of restrictions the government imposed on their ability to speak to potential witnesses, including forbidding them from directly approaching agency personnel.” 

Savage added that prosecutors had “offered summaries of what guards and doctors had seen and done, saying that was sufficient,” but that Judge Pohl disagreed, stating, in a 36-page ruling, that those summaries “were not an adequate substitute,” as Savage described it, also noting that, “While he upheld the rules the government imposed on the defense lawyers’ ability to investigate the CIA in general, he also suppressed the FBI statements as evidence because the rules were too restrictive for a fair fight over their admissibility.”

In his ruling, he explained that the summaries “will not provide the defense with substantially the same ability to investigate, prepare and litigate motions to suppress the FBI clean team statements” because the restrictions on defense lawyers’ ability to talk to witnesses “will not allow the defense to develop the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in CIA custody the defense alleges constituted coercion.”

As a result, he refused to allow the government to “introduce any FBI clean team statement from any of the accused for any purpose.”

On August 23, prosecutors asked Judge Pohl to reconsider his ban, calling the results of the FBI interrogations “their most potent evidence,” as Carol Rosenberg described it for the Miami Herald. 

In an 81-page appeal, prosecutors claimed, “The statements made by the accused to the FBI constitute acknowledgments of guilt and responsibility for the largest act of terrorism in the history of the United States, which resulted in the deaths of 2,976 innocent people. Each of the confessions is many pages in length, with each of the accused painting detailed accountings of the plot, their interactions with the hijackers and other co-conspirators, and their own specific participation in the offenses, despite the five accused being thousands of miles away at the culmination of the plot with the attacks of September 11, 2001.”

Nevertheless, James Connell, who represents Ammar al-Baluchi, one of the five accused, hailed Judge Pohl’s ruling, and stated, “Witnesses are the foundation of the American criminal justice system. If the government prohibits the defense from investigating witnesses, the proceeding becomes more like a play than a trial.”

Providing further detail about the wrangling over access to witnesses, Charlie Savage stated that Army Brig. Gen. Mark Martins, the commissions’ chief prosecutor, and his team “had argued that the law permitted some concessions to national security imperatives in such a case, while playing up how much information the government had turned over in discovery about the black-site program, including summaries about what agency employees and contractors who served as guards, doctors and interrogators at the prisons saw and did.” He added, “Most of those people are described using code names.”

As Savage also explained, “After providing that information, the prosecution told defense lawyers last year that they were not allowed to directly approach people they believed might be such witnesses or to travel to countries they believed might have hosted prisons to ask questions.” Instead, prosecutors insisted, “the defense has to go through the government to request interviews,” and “the government in turn approaches witnesses and asks if they want to talk to defense lawyers while also telling them what they can and cannot discuss.”

As Col. Pohl noted, what this meant in practice was that “only a few of the dozens of witnesses the defense asked to speak with agreed to talk under those conditions,” a clearly unsatisfactory situation that, added to the fundamentally dubious nature of the “clean team” interrogations, means that we at “Close Guantánamo” hope that Col. Pohl’s ban survives his departure. 

The sad truth about this trial, and the few others underway at Guantánamo — although they all appear trapped in interminable pre-trial hearings — is that the only viable venue for terrorism trials is in federal court, a conclusion that the Obama administration should have reached instead of, firstly, re-introducing the notion of both federal court trials and military commissions in November 2009, and, secondly, subsequently bowing to scaremongering, and withdrawing the proposal to hold the 9/11 trial in a federal court in New York.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London.

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Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

11 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, examining a hugely significant ruling a week last Friday in Guantanamo’s military commission trial system, as part of the seemingly interminable pre-trial hearings for the 9/11 trial. The ruling was by Judge James Pohl, who has been the judge in the 9/11 trial since the men were arraigned in 2012, and in it he excluded what the prosecution regarded as invaluable evidence that was obtained by FBI “clean teams” in an effort to replicate statements obtained by the CIA using torture while the men were held in “black sites.” In case you’re wondering why the “clean teams” were considered necessary, it’s because, in a reality forgotten by the US government after 9/11, information obtained through the use of torture cannot be used in court.
    To complicate matters, yesterday, just ten days later, Judge Pohl resigned. He claims the two events are unconnected, but it makes you wonder …

  2. june cutright says...

    thnx andy. i hope your readers also support you financially as well as spiritually.

    & wonder indeed. one last blow & i’m out of here?

  3. martin gugino says...

    The objection against “hearsay” evidence is founded on the problem that cross-examination of the source is not possible. Someone else is repeating an allegation but not it is not of his own knowledge.
    This seems similar.
    One needs to be able to cross-examine for truthfulness any allegation made against a defendant, or else what is the jury to make of the allegation?

  4. martin gugino says...

    You say ” the only viable venue for terrorism trials is in federal court”.
    Indeed.
    And a court held on Cuban land, where the lease has been breached, has neither right to be there, nor jurisdiction.

  5. Anna says...

    Not only would the prisoners still be traumatised by previous torture when meeting the ‘clean team’, they also probably would not be capable anymore to remember what is true and what isn’t, rendering their testimony or confession useless. What did really happen and what was suggested to them over and over again, so often that eventually that might have become reality in their minds?
    My mother was interrogated during WWII for one week by Soviet authorities in order to explain why she wanted to go to Sweden. She had to reinvent her own and her family’s – too bourgeois 🙂 – past and memorise all the ad-hoc inventions as the same questions were asked over and over again. As a result of that strenuous exercise and the endless repetition of the same questions & answers, she once told me, certain details of that past she was not sure about anymore herself. Now that interrogation was extremely stressfull (she was with my then two years old brother), but no torture involved. Imagine what years of such endlessly repeated interrogations coupled with all kinds of torture will do to one’s mind & memory.
    I would bet that any ‘confession’ made 15 or more years after the fact would be unreliable under any circumstance, let alone those made by people who must be severely mentally disturbed after what they went through. No matter whether innocent or guilty, any trial after such treatment can never be any better than the Soviet ‘show trials’.
    After all, from what we know, the interrogations were not really questions expected to supply new information, but rather suggestions & accusations which the prisoners were coerced into merely confirming.

    So Pohl finally gave up and I don’t blame him at his age for wanting a life, tending to his flowers and playing with his grand children (if he has any), pity he did not manage to grant any of the prisoners a life too. Haven’t followed his record close enough to have an opinion of what his Guantanamo legacy eventually will be. A decent man stuck in a thoroughly indecent set-up and thus having his hands tied? Or a willing and cooperative cog? Maybe you can supply us with a portrait? Wonder what his successor will be like …

  6. Andy Worthington says...

    Yes, some of them, thankfully, June!

  7. Andy Worthington says...

    Yes, well said, Martin. The ability to cross-examine is essential.

  8. Andy Worthington says...

    Thanks, Martin. Yes, you make a very good point about the illegitimacy of America’s Cuban claims.

  9. Andy Worthington says...

    Great to hear from you, Anna, and thanks for your helpful and powerful assessment of the power of interrogation, and how truth and lies can subsequently blur.
    Regarding the Guantanamo prisoners, I think it’s significant that the “clean teams” didn’t extract confessions “15 or more years after the fact”, but soon after the men arrived at Guantanamo from the “black sites”, thereby placing those sessions much closer in time to the original torture sessions, and making it much more certain that the effects of the latter would linger. But of course it’s not acceptable however much time had elapsed. I must also stress that I don’t believe that the FBI weren’t briefed on what the prisoners had previously confessed.
    As for Judge Pohl, James Connell, the tenacious lawyer for Ammar al-Baluchi, said of him, “He has always been a very patient judge. He always listened to both sides and he often gave rulings that both sides were unhappy with.”
    If I were Pohl, I’d be quite pleased with that, I think.
    As for the new judge, Marine Col. Keith A. Parrella, he’s a 44-year old Marine colonel who has been a military judge for three years, and currently handles court-martial cases at Camp Lejeune, North Carolina. Carol Rosenberg focused on the uphill task he faces:
    “To catch up, Parrella will need to read six years of motions, more than 20,000 page of pretrial transcripts and a classified record whose size is not known.”

  10. Anna says...

    I had missed the fact thet the ‘clean teams’ refer to the original ones after capture. Somehow I was under the impression, that when the CIA torture evidence was rejected, they sent in a team to re-interrogate them without torture and thus white-wash the earlier abuse. Thanks for setting me straight!
    As for Parella, heavens!, having indeed to catch up with such a vast body of records will slow down the already snail-pace process to practically a total stand still.

  11. Andy Worthington says...

    Sorry, Anna, my explanation must have been unclear. The “clean teams” interrogated them after they arrived at Guantanamo, in 2006-07, when the torture, and its effects, would still have been quite fresh.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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