From April 21 to May 17, the 9/11 military commission at the Guantanamo Naval Base held its first-ever, five-weeklong set of pre-trial hearings. The accelerated pace of the proceedings is a clear sign that the current judge, Air Force Colonel Matthew McCall (the fourth judge to preside in the case since 2012) is planning to make some significant rulings before he retires from the military. While McCall announced his plan to retire nine months ago, he has repeatedly made clear that his remains flexible about the date of his departure from the bench in the 9/11 case.
The central issue in the pre-trial hearings, which began in May of 2012, remains unchanged: SUPPRESSION, whether the prosecution will be allowed to use information obtained by interrogators who questioned the 9/11 defendants after they were tortured by the CIA. The last five weeks of legal proceedings included some stunning witness testimony as well as several striking new developments that will have a bearing on the issue.
Testifying for the prosecution, former Naval investigator Robert McFadden described Walid bin Attash as participating voluntarily in interview sessions and eager to discuss his role in 9/11. McFadden also admitted the defendant was never read his Miranda rights nor offered legal counsel. McFadden previously testified in the USS Cole bombing case and the judge in those proceedings suppressed statements the defendant made to McFadden because of the defendant’s previous torture at a CIA black site. That decision has been appealed by the USS Cole prosecution, but there has been no decision after more than 10 months. READ MORE.
Testifying for the defense, former CIA psychiatrist Dr. Charles Morgan (who played no part in the CIA’s RDI – “rendition, detention, and interrogation” – program) who is on the faculty of Yale Medical School and the University of New Haven, and works at the National Center for PTSD (post-traumatic stress disorder), portrayed the post-CIA interrogations very differently. Mr. bin Attash, he testified, would have been suffering PTSD and unable to distinguish between CIA and subsequent interrogators; any confessions he made, regardless of their apparent voluntary nature, were in fact “conditioned fear memories.” Morgan added that the defendant’s PTSD would have been causing him “pain and distress and psychological despair” and that the interrogators were “interviewing a person (who had) been traumatized…a person who suffers from a significant mental illness.” READ MORE.
Despite significant testimony from witnesses like McFadden and Morgan, it also became clear that failure to conduct a speedy trial in the 9/11 case is producing new problems for the prosecution. Increasingly, expert witnesses are dying, suffering from health issues that make their appearance in court impossible, or showing understandable lack of detailed memory now more that 22 years after the events of 9/11.
During the five-week session the judge also made an unprecedented visit to the CIA black site on the Guantanamo base, presumably to see the interrogation room first-hand and determine how similar it is to rooms where post-CIA interrogations were subsequently conducted. He issued a statement explaining that a site visit would be “beneficial for determining” how to rule on suppression. READ MORE. While the April-May hearings were on-going, the New York Times broke a story concerning the attempt to move the 9/11 case to federal court, in 2009. Federal prosecutors, at the time, had rejected using confessions the 9/11 defendants made during FBI interrogations because of the failure to “Mirandize” them. READ MORE.
9/11 pre-trial hearings are scheduled to resume in July and August for another four weeks as the judge attempts to hear from all the witnesses whose testimony bears on the issue of suppression.
