Defense lawyers for the men accused of planning and carrying out the September 11 attacks say that journalists and other members of the public have gotten more information about the torture their clients experienced in CIA black sites than the attorneys representing them.
The lawyers, including one representing accused 9/11 mastermind Khalid Sheikh Mohammed, told a war court in Guantánamo Bay this month that the sanitized summaries of CIA cables provided to defense attorneys for the five alleged attackers do not contain critical details such as dates and which torture techniques were used. Meanwhile, journalists for The Intercept and other publications, as well as the American Civil Liberties Union, have received fuller access to the cables by requesting them directly from the CIA under the Freedom of Information Act.
“We have a distinct difference between what’s available to the defendants in this capital case in discovery on the one hand and to the general public under FOIA in another,” David Nevin, an attorney for Mohammed, told the court. “And apparently there are situations in which security-cleared lawyers defending people in this capital case on trial for their life are entitled to less information than is available to the general public.”
The omissions – the result of a numbing bureaucratic process by which government prosecutors essentially rewrite the cables before sharing them with lawyers for the accused, leaving out material they view as overly sensitive or unimportant – are the latest sign of the government’s failures to ensure a robust defense for the men charged in the attacks, which killed nearly 3,000 people more than 20 years ago.
The CIA cables documenting the interrogation and torture of Mohammed and the other defendants are redacted before being released, meaning that some information is blacked out, with indications of the legal justification, which can include concerns about national security, personal privacy, or that the release could compromise trade secrets. But even those redacted documents often include more detail than the sanitized summaries produced by the prosecution in the 9/11 case.
For example, summaries provided to the defense about the CIA’s interrogations of Mohammed at black sites between his capture on March 1 and March 22, 2003 — a critical three-week interval — include no dates. Yet independent journalist and Intercept contributor Daniel DeFraia used FOIA to obtain more than 50 CIA documents related to Mohammed’s questioning and torture with dates prior to March 22. The cables provided under FOIA also include details and original narratives in the words of the CIA interrogation teams; in the sanitized summaries, those words have been rephrased by the prosecution. In 2019, The Intercept published cables from DeFraia’s trove containing information that is still not available to defense lawyers in the military commission case charging Mohammed and his four alleged accomplices with plotting the September 11 attacks.
“Inconsistent redactions demonstrate that the government is not taking real care to redact only what is necessary, and it’s in fact very clearly over-redacting things that are public,” Dror Ladin, staff attorney at the ACLU National Security Project, told The Intercept.
“What they are withholding is less about national security and more about protecting information that could prove to be embarrassing to the agency.”
The omissions are particularly important in the 9/11 case because the defendants could face the death penalty if convicted. Their sentence could depend in large part on what U.S. intelligence agencies did to them, Ladin said.
“For the defense counsel to fully investigate that question, they need a full picture of what was done to them. When the CIA obstructs the dates, the locations, the people who were involved, the people responsible, it becomes very, very difficult to make that a really concrete picture,” Ladin said. “It’s one thing to just throw around the words ‘torture’ or ‘degrading treatment.’ It’s another thing to really walk through what it was like every day for a person who is being waterboarded over and over and over, or being starved, or being hung from his hands.”
James Connell, lead attorney for 9/11 defendant Ammar al-Baluchi, has used documents provided to the public under FOIA and other declassification orders to supplement the court-regulated discovery and challenge gaps in the information he received from prosecutors.
“Sometimes [the cables released under FOIA] have information in them that the government has invoked national security privilege over,” Connell told The Intercept. “In those situations, the public gets more access to once-classified information than the defense does.”
So why is the government withholding this information, under the eyes of attorneys and judges, in a high-profile capital case?
“The records ultimately show the bad acts of the government,” said Jason Leopold, the BuzzFeed News reporter whose FOIA lawsuits have led to the release of thousands of redacted pages of CIA documents related to the Senate torture report. “What they are withholding is less about national security and more about protecting information that could prove to be embarrassing to the agency.”
In Guantánamo earlier this month, pretrial hearings in the 9/11 case focused on efforts to discover more information about coordination among government agencies in the interrogation and torture of the five men being tried jointly.
“If documents turn up after a representation that there’s nothing there, it wouldn’t be the first time,” said David Bruck, lead attorney for Ramzi bin al-Shibh. “It wouldn’t be the 50th time in the course of these proceedings, as near as I’ve been able to reconstruct.”
The defense teams have been seeking documents and witnesses from the prosecution since the pretrial hearings began in 2012. The prosecution has turned over more than a half-million pages, including 23,000 relating to the CIA’s Rendition, Detention, and Interrogation, or RDI, program. But discovery litigation continues into its ninth year, as the government controls what the defense will see. The issue of national security classification further restricts access to the full record of events that took place in the black sites and later. Arguments over what can be produced are frequently heard in closed sessions, which neither the defendants nor the public may attend, and the filings are not available on the docket.
Over the 20 years since the attacks, documents and information on the 9/11 plots and the CIA rendition program in the hunt for Al Qaeda have been publicly released in government reports like the 2005 9/11 Commission Report and the 2014 Senate Intelligence Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program. They have also entered the public record as evidence in criminal and civil trials; through FOIA requests by journalists, human rights organizations, and citizens; through declassification requests to government agencies; and in records maintained at the National Archives and books published by members of the intelligence community, like CIA contract psychologist James E. Mitchell’s “Enhanced Interrogation.”
Just this September, President Joe Biden signed an executive order directing the Department of Justice to oversee the declassification of documents related to the FBI’s September 11 investigations. Among the documents posted on the agency’s web site in response was an FBI intelligence requirements document that has come up previously in the 9/11 military commission testimony. According to Connell, Baluchi’s attorney, the newly released version differs from the one he was able to use in court in October 2019.
“The FBI intelligence requirement released under the Executive Order includes more than a dozen elements redacted from the version provided by the prosecution in discovery, including what appears to be the code name of the investigation,” Connell told The Intercept this month.
Getting any documents at all is often a long and exhausting process for the 9/11 defendants. Defense lawyers file motions to compel the government to give them information, which are then argued in court for months before a judge decides. And then, as heard in court this month, the documents may not be provided after all.
“The government is taking the approach that they’re not going to turn over discovery unless we fight everything document by document with motions to compel and document requests,” Sean M. Gleason, attorney for Mustafa al-Hawsawi, told Col. Matthew N. McCall, who was appointed in August and is the fourth judge to preside over the case. “If that is their tact, Your Honor, we’re going to be trying this case forever.”
When the hearings resumed this September, at the 20th anniversary of the attacks, McCall faced a trial record with more than 10,500 filings on the docket. This month’s hearings, which adjourned on November 19 at Guantánamo Bay, are the 43rd pretrial session since the five defendants were arraigned in May 2012.
In January 2020, before the proceedings came to a halt due to the pandemic, the psychologists who designed the CIA’s torture techniques, Mitchell and Bruce Jessen, testified as the defendants watched just yards away, and 9/11 victim family members and reporters viewed from a glass-walled gallery. The methods, including waterboarding, were designed to “condition” prisoners to provide information to interrogators and debriefers.
Any statements and confessions the defendants made while they were in the black sites from 2002 to September 2006 have already been suppressed from the trial record. Now the defense is seeking to suppress statements the accused made in January 2007, when a so-called clean team from the FBI restarted the interrogation process in Guantanamo. The court learned this month that FBI agents were detailed to the CIA’s RDI program, a fact that the Senate Intelligence Committee that produced the 2014 torture report apparently did not know.
Defense attorneys told the court that the FBI interrogations should be thrown out, arguing that statements the accused made at Guantánamo were not voluntary because of the profound impact of their prior torture. The prosecution’s stance is that the men’s statements to the FBI should be allowed because four months passed between the end of their black site torture and their reinterrogation at Guantánamo.
Connell is pursuing his own FOIA lawsuits to produce documents he has been denied in discovery. On October 18, in a U.S. District Court filing in Washington, D.C., the CIA stated it had identified 765 responsive documents, representing 3,125 pages of material that it will process and release to Connell on a quarterly basis starting in January 2022.
In the Guantánamo courtroom, lead prosecutor Clayton G. Trivett Jr. volunteered to review classified CIA documents previously provided to the defense. “In no circumstance should the public be getting more information about the same topic than a capital defendant does,” he stated. “We are in violent agreement on that.”
Daniel DeFraia contributed reporting.