Fordham Law


9/11 Snitch Springs U.S. From Torture Trial Trap

Karen Greenberg in Wired, April 09, 2012

Media Source

The CIA tortured Khalid Shaikh Mohammed and his fellow alleged 9/11 conspirators, a decision that, for years, jeopardized any prosecution for the deadly terror attacks. But when admitted al-Qaida member Majid Khan accepted a plea bargain at Guantanamo Bay, it practically paved the way for Wednesday’s announcement of a 9/11 trial. Months from now, Khan will take the stand against “KSM” and his co-defendants — and significantly minimize, if not eliminate, the amount of evidence presented in the trial that the government obtained through cruel, inhuman or degrading measures.

According to experts in national security law, it’s a tremendous win for the government. But it comes with a price. Alongside a criminal inquiry into CIA torture that concluded without recommending prosecutions, a 9/11 trial unblemished by torture will mean the U.S. government will face no consequences for employing techniques long repudiated by the civilized world.

It’s largely thanks to Brig. Gen. Mark Martins that there’s even a military commission for the 9/11 defendants at all. Martins, a former official at the Bagram airfield prison in Afghanistan, is the new chief prosecutor for the commissions. Unlike his predecessors, Martins approached his defendants like a criminal prosecutor: he prioritized among them, and offered deals to the smaller fish in exchange for their testimony against the larger ones.

There is no larger fish at Guantanamo Bay than KSM, the architect of the 9/11 plot. And in late February, Martins effectively announced had a viable path to prosecuting KSM: Majid Khan, a Baltimore-educated former associate of KSM also detained at Guantanamo, had agreed to a 19-year prison deal in exchange for testimony against the 9/11 conspirators. Barely a month later, the military announced it would soon put KSM and the other conspirators on trial at Guantanamo.

The two developments are intimately related. “If they have Khan and he can present on the stand under non-coercive circumstances evidence about 9/11 and evidence about the operational aspects of al-Qaida pursuant to 9/11, then the prosecution doesn’t think it has to introduce evidence gained through the torture of KSM, Ramzi bin al-Shibh and the others,” says Karen Greenberg, director of the Center on National Security at Fordham Law School. “Majid Khan’s testimony is not the result of torture. Therefore, you don’t need KSM’s confessions or anything that’s arguably compromised by torture.”


Under the rules of the military commissions — which were written after 9/11 for terrorism trials and have been revised many times — evidence gained through torture is supposed to be inadmissible. KSM was waterboarded 183 times in the first month of his captivity. He and his fellow 9/11 conspirators were held by the CIA for years in secret prisons where the agency used interrogation techniques that included contorting detainees’ bodies in painful conditions, depriving them of sleep and sharply reducing their caloric intakes. Even though KSM confessed to playing a lead role in 9/11 years later, his confession may not be allowed to be used as evidence.

By contrast, the rules of the commissions are congenial to Khan’s testimony. Khan was not party to the 9/11 plot. But military commissions allow greater flexibility to introduce hearsay evidence than civilian courts do.

Much of the prosecutorial strategy depends on how much leeway the military judge provides Martins to use Khan. Khan is not believed to have first-hand knowledge of the 9/11 plot, and interacted with KSM in 2002 about an alleged follow-on attack. But he is believed to have learned much about the plot through KSM. “I dont think he’s a slam dunk,” says Andrea Prasow, the chief terrorism researcher for Human Rights Watch, “but I absolutely believe the plea bargain is a huge win for the government for keeping torture out of the public view.”

Additionally, Khan won’t be sentenced for four years. That means the structure of the deal Martins made with Khan is effectively contingent on how Khan performs on the stand against KSM. “The incentives for Khan are so huge,” Greenberg observes. “There’s no deal until Khan testifies. It all happens in four years. It hangs over his head.”

Before Khan testifies, the military commissions will work out the parameters of his testimony — especially what’s admissible. Pre-trial hearings will begin at Guantanamo by early May at the latest. There, lawyers for the 9/11 defendants will file motions arguing for the inadmissibility of various pieces of evidence, surely to include Khan’s hearsay. These pre-trial hearings typically take months.

Even if the military judge assigned to the 9/11 trial permits the vast majority of Khan’s testimony, the 9/11 lawyers will still endeavor to make the torture of their clients an issue at the trial. The problem, Greenberg says, is that the deck is stacked against them, institutionally.

“Unless the Convening Authority [who runs the commissions] says we won’t allow word torture, the defense will find a way to get it in,” she says. “But the military commission rules give the Convening Authority a lot of leeway to introduce and exclude evidence. Even if he does exclude evidence gained through torture, the fact that the jury is picked by the judge and the commissions’ office of defense works within the prosecutor’s office with half the resources provide ways of stacking the system.”

All that points to an underwhelming conclusion to the bitter, ten-year controversy over torture in the 9/11 Era. Last year, the Justice Department concluded an inquiry into CIA torture without recommending prosecutions in 99 out of 101 cases. If the 9/11 trial proceeds with torture as an afterthought, then the government will have faced no hinderance, consequence or reprisal from the use of a practice most of the world considers barbarous and illegal.

“There hasn’t been a public accounting for torture. There hasn’t been a detailed analysis about what happened and who’s responsible,” says Prasow. “If you don’t know what happened, you can’t make sure it never happens again.”