GUANTANAMO BAY NAVAL BASE, Cuba — When Gina Haspel was nominated by President Donald Trump in April to become the next leader of the CIA, it was her professional history of running an overseas black site in Thailand that used waterboarding as a so-called enhanced interrogation technique that took center stage. Haspel’s nomination, hearings in front of the Senate Intelligence Committee and confirmation on Thursday brought more attention to the agency’s use of torture than at any moment since the Senate released its report on the Bush-era interrogation program in December 2014.
For anyone paying attention, however, the torture program has become the crux of the oft-forgotten, decade-old criminal prosecution being tried in Guantanamo Bay, Cuba: the 9/11 case. The CIA’s use of torture to elicit statements from the accused 9/11 plotters will play a critical role in the defense teams’ strategy — even as they allege the government has blocked access to critical evidence and witnesses. Lawyers claim the government’s efforts to conceal details of the torture program should lead to the case’s dismissal.
Five detainees, including accused plot mastermind Khalid Sheikh Mohammed, face the death penalty for their alleged roles in the attacks. All five went through the CIA’s “Rendition, Detention and Interrogation,” or RDI, program (also widely knows as the torture program). And all five defense teams are desperate to learn as many details as possible about the abuse at CIA black sites as they seek to challenge the government’s case and bolster claims that the United States has lost the moral authority to execute their clients. As they do, officials with knowledge of the program, like Haspel, will be sought as witnesses.
In January, prosecutors in the case threatened defense attorneys with criminal charges if they try on their own to contact CIA interrogators involved in torture.
During the latest pretrial session on the island, held from April 30 to May 4, defense attorneys argued for more evidence about the program, as well as their right to contact and interview CIA personnel who participated in the interrogations.
“It’s not enough just to say we tortured some folks,” David Nevin, Mohammed’s lead attorney, argued on May 3. “It’s going to be important for [jurors] to understand, in as much detail as possible, exactly what happened, what it looked like, the details of it.”
Nevin’s team revealed during the proceedings that results from a recent MRI on Mohammed “showed significant and severe brain damage” that was “consistent with the torture in the black sites.” The following week, the attorneys filed a request with the judge, Army Col. James L. Pohl, to allow their client to send information about Haspel to the Senate, which Pohl rejected.
The five defendants arrived at Guantanamo Bay from CIA black sites in September 2006. The first effort to prosecute them by military commission, initiated by the Bush administration in 2008, was halted after Barack Obama became president; Obama’s attorney general, Eric Holder, planned to hold the case in federal court in lower Manhattan, in New York City, near the 9/11 memorial.
But that plan collapsed under political pressure, and the defendants were arraigned again at Guantanamo in May 2012 under a reformed commissions system, a hybrid court based on both court-martial and federal court procedures. The case just passed its six-year mark as the parties continue to argue pretrial issues, chief among them that defense teams want more of the gruesome details about the RDI program and access to witnesses, while prosecutors contend they have provided more than enough information.
“We have given them discovery that describes in vivid detail in many cases the treatment of the accused,” Jeffrey Groharing, one of the prosecutors, argued to Pohl in court on April 30. “They can offer any piece of that, and we’re not going to dispute it.”
The government has provided roughly 17,000 pages of RDI evidence — all with actual black site locations and identities of interrogators stripped out — while the Senate torture report relied on more than 6 million pages of underlying documents.
“That’s three-tenths of 1%,” Nevin told the judge.
But the real and increasingly bitter showdown is unfolding over the defense teams’ desires to supplement this evidence by conducting their own investigations into the torture program.
In September 2017, the government told the defense teams in writing that they could not contact any current or former CIA personnel that they suspect may have played a role in the interrogations. In court during the last session, prosecutors requested that Pohl sign off on this prohibition on investigations with a new protective order. Groharing asked Pohl to think about the widow of a CIA officer who might be killed if defense teams unmask his identity. Prosecutors have said they have no interest in going after defense lawyers, but have also said their attempts to independently investigate the torture program could violate the Intelligence Identities Protection Act.
Defense attorneys have been at times insulted and dumbfounded by the government’s position. Like the prosecution side, the defense teams are composed of a mix of government-paid civilian and military lawyers with top security clearances who are obligated not to disclose classified information. They say the prohibition is unconstitutional and an existential threat to the fairness of the case because conducting investigations is the core part of their job as defense attorneys, particularly in a capital case.
As part of its proposed protective order,, the government also wants interview requests related to the RDI program to go through the prosecution team, a process that the defense teams say is unworkable and will cut them off from crucial witnesses.
James Connell, the lead defense lawyer for Ammar al Baluchi, who is Mohammed’s nephew, argued that it is the government’s right to protect certain information — but not without a price.
“They have chosen to protect the identities of those involved in torture and other cruel and inhuman and degrading treatment over an adversarial trial,” Connell said.
The defense teams told Pohl he should dismiss the case or remove the death penalty as a sentencing option, or at the very least lift the ban on investigations by rejecting the government’s proposed protective order.
The judge did not rule on the government’s proposal, but is expected to do so before the next session, which is scheduled to start July 23. Defense attorneys have suggested that, if Pohl approves the prohibition on investigations, they may have to withdraw from the case for ethical reasons.
“I think all of us are going to have to do some real soul-searching in terms of what our ethical duties are and what we can and cannot do in the course of this case,” Walter Ruiz, the lead attorney for Mustafa al Hawsawi, alleged to have helped the hijackers with logistics, told Pohl.
Prosecutors contend the defense teams are unreasonably obsessed with the disbanded CIA program, which they say has nothing to do with the actual charges of murdering civilians. The government does not plan on using statements taken during black site interrogations at trial. Groharing told Pohl that the government has no objection to the teams interviewing “the actual witnesses” of the case.
“There’s no restriction for the defense to ask them about, you know, witnessing 2,700 murders that day,” Groharing said.
When it comes to the RDI program, Groharing said the government has also provided a list of 25 individuals publicly known to be associated with the program whom the defense teams are free to contact for interviews and develop as potential witnesses. Examples include Jose Rodriguez, who wrote about his role in the RDI program in his book Hard Measures.
For reasons that were not made clear in court, Haspel is not yet on that list of approved witnesses. On Wednesday, Connell said his team will not contact her unless the judge lifts the ban on defense-team investigations.
“If public reports are accurate, Ms. Haspel would fall under the current investigations ban, as well as the proposed protective order banning additional investigation,” Connell said.