CIA torture cover-up still looms over 9/11 trials at Guantánamo

U.S. war crimes in the so-called War on Terror were back in the spotlight Tuesday as pretrial hearings for alleged 9/11 mastermind Khalid Sheikh Mohammed and four co-defendants resumed at Guantánamo Bay, with a lawyer for one of the men asserting that a "continuing cover-up" of CIA torture is the reason none of the suspects have been tried 15 years after their transfer to the extralegal prison.

"Enter the Guantánamo Bay military commissions, purpose-built to launder the CIA torture program."
—Alka Pradhan, human rights lawyer

After a 17-month delay due to the Covid-19 pandemic, the five defendants—Mohammed, his nephew Ammar al-Baluchi, Walid bin Attash, Ramzi bin al-Shib, and Mustafa al-Hawsawi—appeared before a U.S. military court at Gitmo's "Camp Justice" Tuesday.

The men—two Pakistanis, two Yemenis, and one Saudi—stand accused of what military prosecutor Clayton Trivett Jr. has called the "summary execution" of nearly 3,000 people in New York City, Washington, D.C., and Pennsylvania during the September 11, 2001 attacks. They face execution if convicted.

However, the defendants' attorneys argue that their clients' confessions should be thrown out because they were extracted through torture, evidence of which has been blocked from the courtroom. Experts also say that confessions and information resulting from torture are highly unreliable.

"Make no mistake. Covering up torture is the reason that these men were brought to Guantánamo and the continuing cover-up of torture is the reason that indefinite detention at Guantánamo still exists," Jay Connell, the lawyer representing al-Baluchi, said Tuesday. "The cover-up of torture is also the reason that we are all gathered at Guantánamo for the 42nd hearing in the 9/11 military commission on the 15th anniversary of the transfer of these men to Guantanamo."

The five defendants, who were all captured in Pakistan in late 2002 and early 2003, were turned over to the United States before being transfered to CIA black sites, including the notorius "Salt Pit" outside Kabul, Afghanistan, where suspected militant Gul Rahman was tortured to death in November 2002. In 2006, the prisoners were transferred to Gitmo.

All five men were tortured. Mohammed was subjected to interrupted drowning, commonly called "waterboarding," 183 times, as well as other torture and abuse approved under the George W. Bush administration's "enhanced interrogation" program. Hawsawi suffered a shredded rectum resulting from sodomization during so-called "rectal hydration" and has had to manually reinsert parts of his anal cavity to defecate.

As recently as December 2017, United Nations special rapporteur Nils Melzer warned that al-Baluchi was still being tortured at Guantánamo.

The defendants' treatment is thoroughly documented in a 2014 Senate Intelligence Committee report on post-9/11 CIA torture, which found that many innocent individuals were wrongfully detained due to mistaken identity and faulty intelligence, that detainees were subjected to horrific and even deadly abuse, and that the brutality and scope of the program were hidden from key government officials. The report also raised serious doubts about al-Hawsawi's guilt.

However, in December 2012, then-presiding judge James L. Pohl prohibited all testimony related to the defendants' capture, imprisonment, and torture, and according to a May 2016 court filing the Army colonel conspired with military prosecutors to destroy evidence in Mohammed's case.

Several Gitmo prosecutors have resigned over what they said is a corrupt military commissions system designed to convict every defendant. Former lead prosecutor Col. Morris Davis called the trials "rigged from the start" and said he was told by a top Bush lawyer that acquittals were unacceptable. At least four other military prosecutors requested removal from the military commissions because they felt the proceedings were unfair.

Alka Pradhan, a U.S. human rights attorney who has represented Guantánamo prisoners and other torture victims, on Monday called the Gitmo military commissions "purpose-built to launder the CIA torture program."

Of the approximately 780 men and boys imprisoned at Guantánamo since 2002, 39 remain following last month's transfer of 56-year-old Moroccan detainee Abdul Latif Nasser, who was jailed for 19 years without charge or trial. Of the 39, 28 have never been charged with crimes over nearly two decades of imprisonment. Ten have been recommended for third-country transfers.

"Two decades after the attacks of September 11 were carried out the survivors and their families have yet to see any justice, reparation, or accountability for that heinous crime," Daphne Eviatar, director of the Security With Human Rights program at Amnesty International USA, said in a statement Wednesday.

"Rather than fair and transparent trials, the military commissions created at Guantánamo Bay have been a dismal failure," she added, "denying survivors and their families justice, skirting United States and international law, and abusing the rights of those who remain imprisoned at the facility."