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.