For years, a thorny query has dominated pretrial hearings within the army commissions case over the Sept. 11, 2001, assaults: Did the lads accused of plotting them voluntarily confess in 2007 after the C.I.A. had stopped torturing them, and will these statements be used as proof at their eventual death-penalty trial?

So it got here as a shock when a veteran F.B.I. analyst revealed that in 2009, when the Obama administration was planning to as an alternative attempt the lads in civilian court docket, federal prosecutors had determined towards attempting to supply the statements as proof.

The revelation units in stark reduction the opposite choice by army prosecutors to construct their case round summoning the F.B.I. interrogators as witnesses, calling such potential testimony their “most critical” evidence. It additionally underlines how that call has opened the door to years of litigation and contributed to a prolonged delay in getting the case to trial.

Brig. Gen. Mark S. Martins, the chief prosecutor at Guantánamo from 2011 until his retirement in 2021, didn’t reply to a request for remark.

Throughout a closed listening to on March 6, Kimberly Waltz, a supervisory intelligence analyst on the F.B.I. who works on the Guantánamo prosecution workforce, disclosed that civilian prosecutors had determined the statements have been pointless. In 2009, when she helped the civilian prosecution workforce consider the proof, federal prosecutors rejected utilizing the confessions at trial, in response to a transcript of the listening to just lately launched by the federal government.

“At the moment it was my understanding,” she stated, that “we weren’t going to have the ability to use them; they weren’t admissible.”

In an interview, Adam S. Hickey, a former federal prosecutor who was a part of the 2009 civilian workforce, confirmed that the workforce had determined, for “strategic causes,” towards attempting to make use of the statements in federal court docket. The confessions weren’t essential to show the lads’s guilt, the prosecutors believed, and it was not price arguing over whether or not they have been made voluntarily.

“We didn’t spend a lot time analyzing the authorized query,” he stated. The considering was, “Let’s simply have a clear break.”

Ms. Waltz gave an easier purpose. Earlier than the prisoners spoke to the federal brokers, “They weren’t Mirandized.”

The Miranda warning is the discover that police learn to tell individuals in custody that something they are saying can and can be used towards them in court docket and that they’ve the best to stay silent and to have a lawyer current throughout questioning. The Supreme Courtroom required it to guard the Fifth Modification proper towards self-incrimination. Prosecutors can use statements that folks made in custody as courtroom proof if the defendants had obtained the warning.

However it’s not clear whether or not or how the Fifth Modification applies to noncitizens held at Guantánamo. Beneath a 2009 regulation, army commissions requirements are more flexible, permitting such statements if a choose decides they have been “voluntarily given” and dependable.

The bid by army prosecutors to make use of the confessions has set off a protracted struggle as attorneys discover the years of torture and solitary confinement the defendants underwent earlier than the F.B.I. talked to them.

The 4 Guantánamo prisoners who’re accused of conspiring within the Sept. 11 plot have been captured in 2003. They have been held by the C.I.A. in “black website” prisons and tortured. A fifth such detainee, Ramzi bin al-Shibh, was initially a part of the case, too, however has been declared mentally unfit to stand trial — a situation his lawyer blames on his torture.

In 2006, the Bush administration had the lads moved to Guantánamo for trial, and so they have been questioned anew by so-called F.B.I. clear groups uninvolved with the torture. Protection attorneys, arguing to suppress these statements, say that they have been tainted by what occurred earlier than.

For instance, the C.I.A. had pressured Khalid Shaikh Mohammed, who’s accused of being the architect of the hijackings, to speak to interrogators by means of waterboarding, rectal abuse, shackling whereas nude and different brutality. He had been in U.S. custody for greater than 1,400 days by the point federal brokers questioned him and his co-defendants in 2007.

Khalid Shaikh Mohammed, seen right here in a photograph supplied by his attorneys, was pressured to speak to interrogators by means of waterboarding, shackling and different brutality.

The thought was to make use of these interrogations as confessions in a army trial at Guantánamo Bay. However in 2009, Lawyer Basic Eric H. Holder Jr. determined as an alternative to carry the trial in a civilian court docket in New York, and prosecutors obtained a grand jury indictment of the men that yr.

The plan met steep political resistance, and Congress blocked it. Army prosecutors charged the present case at Guantánamo in 2012.

It has since come to mild that there’s one other supply of incriminating statements by the defendants: The federal government had secretly bugged a jail yard at Guantánamo and had recordings of them speaking to different prisoners concerning the plot.

For instance, the federal government has disclosed a translation of an overheard Arabic dialog within the jail yard in 2009, through which one other defendant, Ammar al-Baluchi supposedly stated to a fellow detainee: “Three-quarters of the cash for the operation was despatched by means of me.”

These recordings and different accessible proof apparently persuaded the civilian prosecutors that that they had sufficient to win convictions with out confessions. Extra proof being supplied for the Guantánamo trial consists of financial institution data, movies and intercepted phone calls.

Army prosecutors, nonetheless, have devoted years to defending the disputed proof that the federal prosecutors deliberate to forgo. They need a “Legislation & Order” second with Frank Pellegrino, a retired F.B.I. agent who tracked Mr. Mohammed for years, describing for a army jury how he and Mr. Mohammed spent 4 days in January 2007 discussing the Sept. 11 plot.

On the course of Bush administration attorneys, who believed the Supreme Courtroom’s 1966 ruling in Miranda v. Arizona didn’t apply at Guantánamo — a notion that protection attorneys contest — Mr. Pellegrino and different F.B.I. brokers didn’t begin with the warning from that case.

They learn from a distinct script that merely informed prisoners that speaking was non-compulsory and that they might not be returned to the individuals who held them earlier than. When Mr. Mohammed asked for a lawyer, the request was brushed apart.

The choice to attempt to use the confessions has difficult the case for years.

In 2018, the primary army choose within the case, Col. James L. Pohl, threw out the confessions, citing limits on protection attorneys’ potential to research the C.I.A. years, then retired. However the subsequent choose reinstated them to find out whether or not protection attorneys may mount a significant problem.

Since 2019, the court docket has heard 140 hours of wide-ranging testimony about each the C.I.A. program and the defendants’ years of solitary confinement at Guantánamo Bay because it explores whether or not the 2007 statements have been voluntary.

The efforts by protection attorneys have surfaced new particulars from the black websites that in flip have helped the attorneys spin up motions to dismiss the case or take the loss of life penalty off the desk. Amongst their arguments: The detainees have been not informed of their Miranda rights, the government’s conduct was outrageous and the prisoners have been subjected to illegal punishment even before their trial.

The identical challenge arose in Guantánamo’s different capital case, towards a detainee who’s accused of conspiring within the 2000 bombing of the U.S.S. Cole. Final yr, a choose suppressed that defendant’s 2007 statements to the F.B.I., writing that his will to withstand incriminating himself had been “deliberately and actually overwhelmed out of him” in C.I.A. custody. Prosecutors are interesting.

Within the Sept. 11 case, Mr. Pellegrino and Ms. Waltz have each testified that they noticed voluntary regulation enforcement interviews that have been separate and other than the C.I.A. period, a time that Mr. Pellegrino described as a “flaming bag of crap that we bought caught with.”

However final week, Dr. Charles A. Morgan III, a former psychiatrist on the C.I.A., testified that its abuse had embedded such concern in Mr. Baluchi’s psyche that he couldn’t distinguish between the F.B.I.’s interrogations and earlier ones by the C.I.A. The C.I.A. program, he stated, rendered “individuals malleable with the intention to have them act in ways in which weren’t in their very own pursuits.”

The present choose, Col. Matthew N. McCall, has stated that he hoped to resolve the admissibility query earlier than he retires on the finish of the yr. Final week, he stated, he would contemplate extending his time on the bench into 2025.

In an interview, Mr. Holder stated that had his plan to attempt the lads in america occurred, the case can be lengthy over.

“The politicians and hacks who second-guessed my choice to convey instances within the efficient federal courts must be ashamed,” he stated. “Had it not been for his or her political machinations, Khalid Shaikh Mohammed would simply be a nasty reminiscence now.”



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