How Government Secrecy on Torture Has Stymied the 9/11 Terror Prosecution

How Government Secrecy on Torture Has Stymied the 9/11 Terror Prosecution

How Government Secrecy on Torture Has Stymied the 9/11 Terror Prosecution

This case is the last front in the long-running battle over the Bush-era torture regime.


Around 9 pm on December 4, 2017, two FBI documents were delivered to the defense teams representing the five Guantánamo detainees on trial in the military commissions for their alleged roles in the September 11, 2001, terrorist attacks. These documents, which the lawyers had been requesting since 2013, would be the focus of proceedings starting at 9 the following morning. The 11th-hour timing of the document drop is not unusual in this legal system, where the prosecution controls when and what governmental information (as well as access to witnesses and resources) will be provided to the defense.

In the 9/11 case, the pretrial discovery process is exceptionally contentious by any measure. The defendants were held for years and tortured in CIA black sites prior to their transfer to Guantánamo in September 2006. Most information about the agency’s Rendition, Detention, and Interrogation (RDI) program—although it was terminated years ago—remains a national-security secret. The defense lawyers, all of whom have top security clearance, have spent years filing motions and arguing to gain information about what happened to their clients in CIA custody, and insist that this information must be discoverable, not least because in capital cases where the death penalty is on the table, heightened due process applies. The prosecution disagrees, insisting that this trial is about the defendants’ roles in the crime of 9/11, and that what happened to them afterward has little bearing on their involvement in these events. In lieu of original classified materials about the CIA’s program, prosecutors produce—and the judge reviews and approves—summaries of select materials they deem relevant; those summaries obscure specific dates and locations and mask the identities of people with “unique functional identifiers” and pseudonyms (e.g., Interrogator 1, Dr. Shrek).

The two FBI documents delivered that December night provide a glimpse of how the government has strategized in building its case against the 9/11 five. The documents pertain to the so-called “clean team” process, in which FBI agents were tasked to elicit statements untainted by torture after the men were transferred to Guantánamo. The defense teams finally got these documents because Walter Ruiz, the lead lawyer of the team representing Mustafa al-Hawsawi, had pressed the judge, Army Col. James Pohl, to calendar a hearing on whether the military commission is an appropriate venue to try his client. This personal jurisdiction challenge forced the prosecution to provide the defense with information about the FBI’s role and its relationship to the CIA torture program, because statements made to the FBI are an important element of the government’s case.

That week in December was the 26th round of pretrial hearings in the 9/11 case since the five defendants were arraigned in May 2012. The case actually began years earlier, when the same men were arraigned in June 2008. The Pentagon had pushed to start their trial while George W. Bush was still in office, because his administration had created the Guantánamo detention facility and the military commissions as well as the CIA’s RDI program. During the 2008 arraignment, the most “valuable” detainee at Guantánamo, Khalid Sheikh Mohammed (aka KSM), who is accused of being the key planner of the 9/11 plot, rejected his military lawyer. He told the judge that he welcomed a death sentence: “That is what I wish—to be martyred.” Several of the other “brothers,” as they refer to each other, followed suit. Apparently, this suicide-by-military-commission strategy had not been anticipated by the government, and it foiled the plan to make the 9/11 trial a showcase for expeditious American justice. During Bush’s lame-duck period following the 2008 election that Barack Obama had won, the case was stayed.

In November 2009, the Obama administration’s Attorney General, Eric Holder, announced that these five men would be transferred from Guantánamo to face trial on terrorism charges in the federal court in Lower Manhattan, close to “the scene of the crime.” That plan was derailed within weeks as a result of domestic political opposition, and the following year Congress passed legislation prohibiting the transfer of any Guantánamo detainees to the United States for any reason, including trial. In May 2011, charges were refiled against the five in accordance with the Military Commissions Act that Congress had passed in October 2009, which revised the 2006 version of the same name. The 2009 MCA requires that any defendant who faces the death penalty must be represented by a government-provided death-qualified lawyer, termed “learned counsel.”

Al-Hawsawi’s Week

The 9/11 hearings in December 2017 were described as Mustafa al-Hawsawi’s week. His placement in the high-security courtroom symbolizes his place in this group trial; his table is the fifth, behind his four co-defendants. Al-Hawsawi and the defendant whose table is directly in front of his, Ammar al-Baluchi (aka Ali Abdul Aziz Ali), are accused of being money men for the 9/11 conspiracy. Often, al-Hawsawi forgoes attending hearings because he is in constant pain from the sodomization he endured in black sites, which caused a disfiguring medical condition called rectal prolapse. In October 2016, he underwent rectal surgery, but he still suffers in ways that, as learned counsel Ruiz has explained, force him to constantly choose between eating and defecating painfully, or fasting.

Among the defense teams, Ruiz is regarded—and regards himself—as an outlier because he has been strategizing and striving for years to sever al-Hawsawi’s case from the others. He maintains that his client’s alleged role is relatively minor and that by trying the five together, the government is bootstrapping to implicate him in more serious allegations against the others. In an interview, Ruiz explained,

[We] want Mr. al Hawsawi to be judged based on the evidence against him—to have individualized justice. That’s very difficult when you have a group setting. We’re very concerned ultimately about a fact finder being able to separate one piece of evidence against one person from one piece of evidence against another person, and not having that spill-over prejudice—the birds-of-a-feather and flock mentality, which is obviously what the prosecution wants to exploit and why they’re fighting hard to keep it as a joint trial.

The other teams, to varying degrees, have prioritized the quest for more information about their clients’ years as ghost detainees in CIA custody. But everyone on the defense side agreed that the release of the FBI documents and the proceedings that week were a game changer. As James Harrington, learned counsel for Ramzi bin al-Shibh, said, it was the “first time there were warm bodies in the witness seat.” The warm bodies were FBI Special Agents Abigail Perkins (now retired) and James Fitzgerald, who interrogated al-Hawsawi in January 2007.

FBI Memos as Snapshots of History

Two FBI memos provide snapshots of the rise and fall of the US torture program. The first, dated May 19, 2004, begins with a synopsis:

In light of the widely publicized abuses at the Abu Ghraib prison, Iraq, this [memo] reiterates and memorializes existing FBI policy with regard to the interrogation of prisoners, detainees, or persons under United States control (collectively “detainees”). These guidelines serve as a reminder of existing FBI policy that has consistently provided that FBI personnel may not obtain statements during interrogations by the use of force, threats, physical abuse, threats of such abuse or severe physical conditions.

On the second page of the two-page document, a bolded and underlined sentence reads: “FBI personnel shall not participate in any treatment or use any interrogation technique that is in violation of these [1997] guidelines…” If such treatment occurs, they must remove themselves, even “[i]f a co-interrogator is complying with the rules of his or her own agency…”

That memo, produced three weeks after the Abu Ghraib photos became public, was a prescient bet that the Bush administration’s authorization of violent and coercive interrogation tactics was about to explode, and the FBI wanted to be on record—at least to itself, since the memo was not public—that its hands were “clean.” The implication was that the hands of other government agencies had been soiled by the torture and abuse of detainees. Indeed, the pressure created by the Abu Ghraib scandal forced the Bush administration to begin releasing some information about the highly classified interrogation and detention operations in the “war on terror”; the first documents to become public in June 2004 exposed the torture-permissive rationales produced by Justice Department lawyers to provide the CIA with legal cover for techniques they were using on “High Value Detainees” (HVDs) at black sites in foreign countries. These “torture memos,” as they were instantly and aptly described, intensified the scandal triggered by the photos. Later that June, the Supreme Court issued a landmark ruling in Rasul v. Bush that people at Guantánamo could not be indefinitely deprived of the habeas corpus right to challenge their detention. This was the first judicial rebuke of the Bush administration’s claim that these prisoners had no rights.

Prior to Rasul, Guantánamo had been an ideal venue for long-term military detention because prisoners were held incommunicado. The CIA had offloaded a few HVDs who, they determined, were no longer sources of “actionable intelligence.” However, in the spring of 2004, the CIA repossessed those HVDs and moved them to black sites in other locales.

The second FBI document, dated January 10, 2007, reflects the ramifications of another landmark Supreme Court decision, the June 2006 ruling in Hamdan v. Rumsfeld that all prisoners in US custody—which would include those held by the CIA—had, at minimum, the rights enshrined in Common Article 3 of the 1949 Geneva Conventions, the so-called “humanitarian baseline.” These include the right not to be tortured or subjected to “outrages on human dignity.”

Hamdan demolished whatever assurances the Bush administration had provided to the CIA that the people they held would never see the light of day, and that the things done to them would remain top secret forever. As former vice president Dick Cheney later explained, the CIA program had never been intended to build a case for prosecution: “Intelligence officers of the United States were not…trying to get terrorists to confess to past killings; they were trying to prevent future killings.”

Enter the Clean Teams

The FBI was the government’s solution to the conundrum of how to elicit incriminating statements from people who had been disappeared and tortured for years. The January 2007 memo lays out the procedures for clean teams to interview people recently transferred from black sites. The memo instructs the agents: “No statement made by a detainee while that detainee was in the custody of an intelligence agency, or any evidence obtained as a result of such statement will be used in an interview unless approved in advance by the assigned prosecutor and the appropriate intelligence agencies.”

In describing how such interviews shall be conducted, the memo advises that the MCA does not require Miranda warnings to be given to people during interrogation, but nevertheless the FBI agents should determine that anything the detainee says is freely given and not coerced. If the detainee asks for an attorney, the agent should inform him that, because he has not (yet) been charged with a crime, he has no such right. The agents should also make clear that the detainee’s circumstances have changed, for example by stating that they “do not work for and are independent of any organization that previously held” him and “that he will not be returning to the control of any of his previous custodians.”

The official rhetoric about the clean-team process goes as follows: Whatever happened to these men before they were transferred to Guantánamo is over but nevertheless remains classified. Whatever statements they made during their time in CIA custody will not be used by military-commission prosecutors. Whatever statements they made to FBI clean-team agents is court-worthy by virtue of the conduct of interrogations using conventional and lawful means.

The implications of this rhetoric depend on two presumptions: that the FBI was institutionally separate from the CIA and had not dirtied its hands by colluding in torture, and that time itself could be separated between torture time and post-torture time. Thus, the FBI was tasked not just with producing clean evidence but also with assisting in the whitewashing of the present as post-torture time.

Yet this notion of separation, institutional and temporal, was belied by the contents of the second memo, which confirmed that the CIA retains significant control over the HVDs now imprisoned at Guantánamo. This includes control over their own memories and recollections of their treatment in black sites. According to the memo, any information that may come up during the FBI interview about interrogation techniques or black-site locations, “even though coming from a detainee, is deemed by the CIA to be national security information.”

The CIA’s control extended to the clean-team interrogations. FBI agents were instructed to produce a “letterhead memorandum [LHM] prepared on a CIA-supplied laptop.” A footnote then states: “Allegations of misconduct will not be included in this LHM” (emphasis in original). It also instructs the agents to submit the LHM and their interrogation notes to the CIA for classification review. The for-public-consumption illusion of institutional separation is contradicted by the concept of “compartmented information,” which engulfs anything pertaining to torture. “If the CIA determines that compartmented information is contained in the LHM, the interviewing agent should create a separate LHM.”

Warm Bodies and State Secrets

The December 2017 hearings involving testimony from the two FBI agents began with the prosecution, which presented a compelling array of evidence about financial dealings between al-Hawsawi and some of the 9/11 hijackers. When it was Ruiz’s turn to cross-examine Agent Perkins, she testified that during her January 2007 meetings with al-Hawsawi, he spoke freely and acknowledged his role in the 9/11 plot. She said he never mentioned any abuse by the CIA and she never asked. Perkins’s affect on the stand was a blend of matter-of-fact professionalism and uninquisitiveness. She didn’t know then and doesn’t know now much about al-Hawsawi’s abusive treatment in black sites. When Ruiz asked what she knew about his capture in Rawalpindi, Pakistan, in March 2003, Judge Pohl warned her not to reveal classified information in open court. This was a pointed reminder that all details about al-Hawsawi from the moment he was taken into US custody until the time he was transferred to Guantánamo in 2006 are state secrets.

When Ruiz questioned Perkins about how she interrogated al-Hawsawi, she explained that she did so without an interpreter, a point that Ruiz bore down on because his client is not fluent in English. When Ruiz asked whether the interrogation was taped, she said no because the CIA ground rules prohibited it.

The bombshell in Perkins’s testimony was that she reviewed CIA black-site cables to prepare questions and strategies for her interrogation. While this black-site leakage into the process to obtain court-worthy evidence was not surprising to Ruiz or the other defense teams, putting it on record in open court undermined the pretense of separation between CIA torture and the FBI clean teams.

At a press conference in the Guantánamo media center at the end of the week, Alka Pradhan, who had worked for the human-rights organization Reprieve before joining the team representing al-Baluchi, described the implications of Perkins’s testimony: “Torture-derived evidence affects every part of this process. In no court of law would the 2007 statements be permitted.” James Connell, al-Baluchi’s learned counsel, added, “Torture isn’t a single event, it was a program.”

The Tangle of Conflicting Interests

Torture lies at the center of the impossible tangle of conflicting interests in the 9/11 case. The CIA’s interest is the protection of its secret “sources and methods,” not prosecution, let alone due process. As the original classification authority (OCA) of black-site-related information, the CIA has the power to determine what kinds of information the defense teams “need to know,” and it exercises this power by deciding what is or is not discoverable. The prosecutors are tasked with guarding the CIA’s secrets and enforcing the need-to-know determinations, which they do zealously. Because the defense teams have access to some classified information about the CIA’s torture program, they are regarded with suspicion as weak links in the chain of secrecy, and this has led to multiple instances of governmental monitoring and spying. Several years ago, the case against Ramzi bin al-Shibh was nearly derailed when the defense teams learned that the FBI had tried to turn some non-lawyer members into informants and had succeeded in recruiting several people on learned counsel Harrington’s team. Although the prosecutors had no role in these spy operations, as the government’s representatives they have had to argue, repeatedly, that the case is not too damaged to proceed.

The conflicts of interest escalated precipitously in recent months as a result of new and heightened restrictions prosecutors have imposed on the defense teams’ prerogatives to conduct their own investigations. These restrictions include the prohibition to independently contact any person who may have been associated with the CIA program, with the exception of the handful of people whose roles are now public information. Prosecutors also wanted to restrict defense team members’ travel to countries that hosted black sites because this could be deemed to confirm classified information, despite the fact that this knowledge is publicly available through journalistic and human-rights organizations’ reporting and international lawsuits. During the January 2018 hearings, the chief prosecutor, General Mark Martins, defended the restrictions as a national security necessity: “The mere seeking of interviews with people—and wandering up and ambushing people at the Piggly Wiggly—is a serious thing.” He castigated the defense teams for trying to become their own “private attorney general, or whatever disembodied investigative authority they think they have outside the commission.”

The defense teams contend that these restrictions impede their ability and infringe upon their legally mandated duty to defend their clients and, therefore, put them into an ethical quandary. Moreover, the teams are acutely aware that if the government suspects that they in any way reveal or mishandle classified information, they may be subject to prosecution under the Intelligence Identities Protection Act or the Espionage Act.

The Pitched Battle for Discovery

Over the years, the prosecution has given the defense teams about 17,000 pages of summaries and substitutions of the millions of pages of original CIA materials; the Senate Select Committee on Intelligence (SSCI) had access to the original materials to produce its report on the RDI program, but only a redacted executive summary of this report is available to the public—or to the defense teams. Recently, the prosecution also gave the defense an RDI timeline, which is supposed to reflect and contextualize the summaries and substitutions.

The hearing on March 1, 2018, put the stakes of the long-running battle over discovery on full display. Pradhan had spent more than a month poring over the prosecution-provided materials and comparing that information to open-source materials, including the SSCI report’s executive summary. She took the podium to argue that the flaws and gaps were so great that the defense teams must be able to access the original documents to do their own assessments. Setting the stage for what would follow, she said, “Torture is—Your Honor…the nasty center of this case, whether we like it or not, and we have to deal with it at some point.”

Pradhan began by describing the contradictions in the prosecutors’ positions:

First, that the defense has some hysterical obsession with our client’s state-sponsored torture, as if it didn’t have a direct bearing on their death penalty trial; and second, they wring their hands that they have done all they can to give us all of the relevant documents in their possession, but with the caveat that they have, of course, masked some of the most sensitive information because they are the guardians of national security information and we are not to be trusted.… The government is here carrying that water for the CIA in denying that information not to the public, but to top secret security clearance holding defense counsel.

To illustrate the deficiencies in materials provided to the defense, Pradhan contrasted the publicly available chronology of Gul Rahman’s month-long detention at a black site in Afghanistan (code named “COBALT”) before he died (of exposure) in 2002, which is three pages long, with the classified chronology of her client, al-Baluchi’s, three-and-a-half-year detention at multiple black sites, which is one-quarter of a page.

Judge Pohl asked Pradhan if she was asking him to reconsider the summaries he had approved (under the MCA, which governs this system, the defense has no right to ask for reconsideration). She replied, “No, sir. I’m asking you to compel the government to provide us all the original documents.” Judge Pohl asked, “How is that not a reconsideration?” This exchange exposed one dimension of the larger conflict: If the CIA-directed, prosecution-provided discovery is incomplete or inaccurate, yet has been approved by the judge, the defense must essentially persuade the court why it needs the originals to obtain “granular” details. Pradhan explained, “Mr. al-Baluchi’s recollections of his own torture, while they may be helpful, are not reliable precisely because of his torture over a lengthy period of time.” Pradhan concluded by drawing the judge’s attention to the recently exposed collaboration between the FBI and the CIA, which “is relevant and material” to the 2007 clean-team interrogations and the government’s case. “So at a minimum, the government has spent nearly six years since the arraignment, frankly, wasting our time.”

Jeffrey Groharing, one of the prosecutors, took the podium to defend the discovery process. “There was no intentional wrongdoing, no obfuscation, no information intentionally stripped, and the summaries are not, in any way grotesquely misleading.” He described the request for original materials as an “extreme remedy,” and urged the judge to reject it. Taking Pradhan’s example of the blurring of dates in the timeline, he explained that it was necessary “to protect classified information.” Then he offered what was intended to be an assuaging statement: “The original classification authority…yesterday, issued guidance that would allow additional dates to be provided in certain materials, not all dates.”

Cheryl Bormann, learned counsel for Walid bin al-Attash (aka Khallad bin al-Attash), took her turn at the podium, highlighting the vast gap between the discovery expectations of experienced death-penalty lawyers and the process unfolding in this case:

[I]f this were any other court and I had a detective on the stand…or a special agent from the FBI, and I needed to go into what happened to my client during a 36-hour interrogation, and I had [information that was] riddled with mistakes, my argument to the jury would later be that they can’t believe anything that FBI agent says because that FBI agent is so careless in his duties that everything that he says should be subject to being found unreliable by the trier of fact. And so here we have the same thing.

What if, asked David Nevin, learned counsel for Mohammed, the “information we receive…about the locations of the torture” comes from our clients? Groharing responded that information from the client “can be determined to be classified when held by counsel.” Connell retorted: “That is absolutely untrue.… The government has never produced a single shred of authority…for the proposition that people who were simply abducted by the United States…can be the custodians of classified information.”

Connell and Judge Pohl had an exchange about the purposes that detailed information about torture would serve in this trial. Connell explained that it was pertinent not only to the sentencing phase to seek an alternative to execution if the men are found guilty (i.e., mitigation) but also to the guilt-or-innocence phase to try to suppress statements the clients made to FBI agents as torture-tainted—in legal terms, “fruit of the poisonous tree.” Pohl interjected, “[C]orrect me if I’m wrong here, [but] you’re making the assumption that your [motion to suppress government evidence against your client will fail].” Connell: “Yes, sir. I am.” Pohl: “Okay. But if your suppression motion were to succeed…?” Connell: “Wow.” Pohl: “[Y]ou know, the judges can rule both ways.” Connell: “So I hear.”

A Capital Mess

The conflicts of interest, from the defense teams’ perspectives, could go a long way toward being resolved if the government made a choice: Either prioritize the CIA’s secrets and take the death penalty off the table, or continue to seek the death penalty and respect the adversarial process by enabling the defense to access more information about the torture program—including, for example, the full SSCI report. The prosecutors reject the notion that they must make such a politically unpalatable choice. The secrets, as Groharing explained, are “the most highly classified information that the government has.… [I]t’s extremely important that we protect that information.” But, he insisted, that doesn’t force a choice because the defense teams already have enough information to “paint a very vivid picture…and they have the accused [who are] the best source of information about their experiences in the RDI program.” Moreover, the prosecution will not contest whatever vivid picture the defense wishes to present at trial, as long as it’s tethered to reality. “We’re not going to quibble. We’re not going to call witnesses and debate about whether Mr. Mohammad was waterboarded 183 times or 283 times. We, frankly, think that has little relevance to the commission and the issues before it.”

Harrington could barely contain his agitation. “[S]aying that we can get information from our clients and…that we should focus on the guilt or innocence part of the case and not the sentencing part…is total ignorance of what capital law is all about.” He added that the prosecution has no right to “tell the court or us” how to defend our case. Moreover, the assertion that the defendants—whose torture continues to affect them profoundly—can be reliable sources of classified information “is just preposterous.”

Nevin highlighted another paradox of the government’s position, namely the notion that the defense should rely on open sources for black-site information. “It’s only when I get lucky enough to have some NGO come forward and…develop the evidence…that I can kind of glom onto and use it as a stalking horse to get in the door to talk about conducting my [own] investigation.”

Pradhan asserted, “[T]here is a straight line between what we’re asking for”—the original documents—“and the evidence that the government is trying to use to execute Mr. al Baluchi.” To illustrate the possible effects of the defendants’ torture experiences on subsequent statements to the FBI, Pradhan offered an example from one short period of al-Baluchi’s time in the black sites. Reading from a declassified report (exhibit number is AE 114FF), she said that, prior to his interrogation on May 20, 2003, he “had been kept naked in the standing, sleep-deprivation position since his initial interrogation session on 17 May 2003.” She continued reading: al-Baluchi “was significantly fatigued during this session.… His resistance posture had begun to decline. He appears to be answering questions truthfully. He was presented naked for this session. He was allowed to sit in reward for his increased cooperation.… In any case, he was able to complete the interview successfully despite the sleepiness that he exhibited.” Quoting a CIA psychologist, she said, al-Baluchi “is still developing a sense of learned helplessness which is contributing to his compliance, and the team will continue to lessen the intensity of the interrogation sessions relative to [his] cooperation.” Pradhan then explained the long-term consequences of this treatment by citing the declarations of two neuroscientists that “memory is changed by torture…brain function is changed by torture.”

One outcome of this hearing was a concession by the government that the defense has a legitimate need to know more about the relationship between the FBI and the CIA between 2002 and 2007. A memo dated April 27, 2018, states: “The prosecution is aware of your claim that the five accused were not acting voluntarily in making statements to the FBI agents in 2007…. in addition we are aware of your claim…that the statements…are ‘derived from torture.’” The memo contains a pledge to disclose relevant information, although to date no new material has been provided.

The Illusion of Post-Torture Time

During the most recent hearings, on May 1, 2018, Gary Sowards, one of Mohammed’s attorneys, asked Judge Pohl to issue an emergency order to keep the MRI (magnetic resonance imaging) machine at Guantánamo. The machine had been shipped in the previous October and brain scans had been performed on the defendants. Now, the defense teams were concerned that it would be shipped off before they made further use of it. Sowards explained that the Navy MRI technician had performed only 25 percent of the requested tests on his client. Yet even these limited results seem to indicate that Mohammed has suffered brain damage.

If Mohammed’s brain damage is validated by further tests, it could be grounds for challenging the death-penalty option. Moreover, brain damage resulting from being waterboarded and having his head bashed into walls numerous times while in CIA custody could bolster defense motions to dismiss the case on the grounds of outrageous government conduct. Because brain damage is a permanent condition, it provides a rather literal example of what Jean Améry, a survivor of Nazi torture, wrote, “Whoever was tortured stays tortured.”

Unlike Mohammed, who appears to be high-functioning, Ramzi bin al-Shibh’s fragile mental condition has roiled his case for years; in 2014, Judge Pohl unilaterally severed him from the others, but then reversed his decision. Bin al-Shibh has alleged, repeatedly, that his torture is ongoing in Guantánamo’s super-secret Camp 7 where he and the other HVDs are housed. Specifically, he claims that guards bombard him with “noises and vibrations” to keep him unsettled and unable to sleep, a continuation of the sleep deprivation to which he was subjected in the black sites. One of the ironies of the classification regime that prevails at Guantánamo is the limited ability of his lawyers to investigate conditions in Camp 7 to determine whether bin al-Shibh is experiencing the things he claims or whether his claims are the hallucinatory product of a torture-tainted imagination. Because of his persisting protests about his current conditions of confinement, he is often disciplined by his jailors for being “non-compliant.”

In the weeks prior to the most recent hearings, bin al-Shibh was subjected to intensified discipline that echoed his previous treatment in CIA custody. He was put into an isolation cell with a half-inch rubber pad for a mattress, a Quran, and nothing else. He could not bring his legal materials even though he had hearings approaching, and he had to process his mail and responses within an hour. Bin al-Shibh claims that members of the Camp 7 guard force and medical staff taunted him and threatened to move him to a padded cell or even to send him back to the black sites. In protest because of the guards’ failure to follow standard operating procedures and to comply with the judge’s order to stop the harassing noises and vibrations, he went on hunger strike. He was then told he could be force-fed if his health declines. According to Harrington, this experience severely retraumatized bin al-Shibh and badly undermined his relationship with his attorneys. Harrington said, “This week was one of the deepest valleys I’ve ever been in with my client.” The damage, he added, may never be repaired because bin al-Shibh is so vulnerable and frustrated and his team seems unable to help him.

The confluence of recent developments at Guantánamo illustrates that torture is not a thing of the past for the men on trial or for the attorneys who represent them. Pradhan’s insistence that torture is the “nasty center of this case”—a position shared by some of the other teams—is exasperating to the prosecutors, who insist that the real crime—the mass murders on 9/11—is being sidelined in the tussle over discovery. These unresolved and bitter conflicts over how this case should proceed make the prospect of a start date for the trial increasingly dim. This endlessness renders new meaning to the billing of the 9/11 case as “the trial of the century.”

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