WASHINGTON – Twenty years after Sept. 11, 2001, five men accused of plotting the attacks that killed nearly 3,000 people that day are still awaiting trial before a military commission at Guantánamo Bay, Cuba.
Hearings resumed Tuesday in a pretrial process that began when the defendants were arraigned in 2012, but legal experts say a conviction is still nowhere in sight. That’s partly because the men were interrogated using methods developed and carried out by two retired psychologists from the survival school at Fairchild Air Force Base that critics – and now the U.S. government itself – call torture.
“A lot of the pretrial proceedings are about the torture specifically,” said Francesca Laguardia, an associate professor of justice studies at Montclair State University. “This has caused a huge amount of legal complication in the 9/11 trials, because the government believes that information that was obtained originally out of this program that used torture is vital to their case.”
Starting in 2002, as contractors for the Central Intelligence Agency, James Mitchell and Bruce Jessen reverse-engineered techniques they had trained members of the military to resist at the Air Force Survival, Evasion, Resistance and Escape (SERE) school at Fairchild.
The two men applied those methods – which included sleep deprivation, stress positions and sexual humiliation – to captives, including Khalid Sheikh Mohammed, the alleged 9/11 mastermind who faces the death penalty, along with the four other defendants. The most notorious technique, known as waterboarding, involved strapping a prisoner to a gurney with his head near the ground and pouring water onto a cloth held over his mouth and nose to simulate drowning.
Mitchell and Jessen went on to found a Spokane-based company that was paid $81 million between 2005 and 2009 to help run the CIA torture program – according to a Senate report made public in 2014 – which the George W. Bush administration euphemistically dubbed “enhanced interrogation techniques.”
The two men have maintained that they used the same practices SERE students endured and that the methods would not cause permanent harm, but in a 2014 interview, Mitchell told Vice News, “If you’re going to break somebody’s legs or waterboard them, they probably would prefer you break their legs, because it’s less distressing.”
Attempts to reach Jessen, who lives in Spokane, were unsuccessful. Mitchell, who lives in Florida, declined to speak with The Spokesman-Review.
Mitchell, Jessen & Associates employed guards and interrogators at secret “black sites” around the world where suspected al-Qaida members were detained. In 2006, the five men accused of aiding the 19 hijackers were moved to the detention facility at Guantánamo Bay Naval Base, a patch of land in Cuba’s south the United States has controlled since it occupied the territory in 1898 during the Spanish-American War.
Because of its location, the military tribunal at Guantánamo Bay exists in a legal gray area. The trial, if it ever begins, will take place in a hybrid of military court-martial and federal criminal court systems. The judge and not-yet-selected jury will all be members of the U.S. military.
In addition to Mohammed, the other defendants are Walid bin Attash, accused of training the hijackers; Ramzi bin al-Shibh, accused of organizing a cell of hijackers in Germany; Ammar al-Baluchi, accused of transferring money to hijackers for Mohammed, his uncle; and Mustafa al Hawsawi, accused of helping hijackers with travel arrangements and finances.
Numerous factors have added to the delays that have frustrated families of 9/11 victims and cost taxpayers hundreds of millions of dollars. In 2019, NPR found the Guantanámo detention center had cost more than $6 billion since 2002, and the New York Times calculated an annual cost of $13 million for each of the facility’s 39 inmates.
After the Supreme Court ruled the original military commissions unconstitutional in 2006, prisoners couldn’t be charged at Guantánamo until Congress approved a new process. The five 9/11 defendants were first charged in 2008, and the next year, then-President Barack Obama ordered a review and suspended the trials.
Obama pledged to close the detention center at Guantánamo and prosecute the detainees in federal courts, but Congress voted overwhelmingly in 2015 to block any prisoner transfers to the U.S. mainland, and the president reluctantly signed the bill.
Proceedings resumed in 2012, but have been slowed by disputes over what evidence the defense is entitled to see, transitions between four different judges, COVID-19 restrictions and more.
Alka Pradhan, a defense attorney employed by the Pentagon who questioned Mitchell and Jessen in January and February 2020, declined to comment because the defense is still in the process of taking testimony from the two men.
“If they’d been sent to a normal court,” Laguardia said, “the odds are 97-to-1 they would have been convicted and they would already be, at least, sentenced to life in prison, probably in solitary confinement, if not the death penalty.”
The biggest impediment to the trial, Laguardia said, is the question of whether confessions made during and after torture are reliable and admissible in court.
While the Guantánamo tribunal is not bound by all the precedent that applies in federal criminal courts, the fact that evidence obtained through torture shouldn’t be admitted in court is a “baseline, bedrock principle” of American jurisprudence, said Dror Ladin, an attorney at the American Civil Liberties Union.
Based on that principle, in 2007 the Federal Bureau of Investigation sent a so-called “clean team” to question the five defendants at Guantánamo and obtain confessions that were not tainted by the CIA’s torture. But defense attorneys have said the evidence the FBI collected shouldn’t be admissible either, arguing that their clients were still traumatized by the torture when the “clean team” questioned them.
The past torture could also reduce the chances of a death sentence if the defendants are ever convicted, Ladin said, based on a principle that previous punishment should be considered during sentencing.
“It shocks the conscience to torture someone, abuse them for years, and then put them to death,” Ladin said.
Laguardia said it’s also important to remember that the interrogation methods Mitchell and Jessen developed and practiced were known to be unreliable.
A 2002 memo from the Joint Personnel Recovery Agency, the Pentagon office that oversees the SERE school, referred to the use of extreme duress as “torture” and warned that it could produce “unreliable information.”
“If an interrogator produces information that resulted from the application of physical and psychological duress, the reliability and accuracy of this information is in doubt,” the memo obtained by the Washington Post in 2009 said. “In other words, a subject in extreme pain may provide an answer, any answer, or many answers in order to get the pain to stop.”
In 2008, the New York Times reported that some of the interrogation techniques were copied from a 1957 Air Force study of methods used by Chinese forces to extract false confessions from American prisoners during the Korean War.
In 2015, after the release of the Senate report, two men who were tortured and later released – along with the family of a third man who died during interrogation – sued Mitchell and Jessen in federal district court in Spokane. Ladin represented the plaintiffs in that civil case but is not involved with the military tribunal at Guantánamo.
In videotaped depositions submitted in 2017 as part of that civil case in Spokane, and again when they testified at Guantánamo in early 2020, Mitchell and Jessen portrayed themselves as careful and even reluctant interrogators.
“I deliberated with great, soulful torment about this, and obviously I concluded that it could be done safely or I wouldn’t have done it,” Jessen said in his 2017 deposition.
“Bruce and I had said, ‘We’re not going to continue doing this,’ ” Mitchell recalled in his deposition. “And what they said was, ‘Well, you guys have lost your spine. … There was going to be another attack in America and the blood of dead civilians are going to be on your hands. If you won’t follow through with this, then we’re going to send somebody out there who will.’ ”
“In the end, we were able to convince them that it wasn’t going to be useful and they eventually stopped,” Jessen said. “Not because we thought we were doing or instilling permanent harm, but because we thought it was no longer useful. It wasn’t done gratuitously.”
Ladin said Mitchell and Jessen shouldn’t be seen as solely responsible for the torture program, which was sanctioned by senior officials in the Bush administration, but he said the two psychologists played a key role by giving the practices a “scientific veneer.”
“This torture program was a highly complex bureaucratic enterprise,” Ladin said. “This is not something that two people did on their own, by any stretch. At the same time, it’s a mistake to accept (Mitchell and Jessen’s) testimony at face value.”
Pretrial hearings are set to continue this week, but Laguardia said it’s not clear when the trial itself will start, much less when it could end.
“The reason why this has dragged on for 20 years is because the government made the decision to start an entirely brand-new process,” she said.
While the Supreme Court has ruled that some of the fundamental rights of due process should apply to the defendants at Guantánamo, Laguardia said, “There’s a good argument that nothing is clear, and that is why we’ve spent two decades arguing over it.”
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