Accused 9/11 mastermind seeks access to secret court testimony

GUANTÁNAMO BAY, Cuba — A defense lawyer on Wednesday invoked the bedrock American right to confront one’s accuser as he asked a military judge to permit the accused mastermind of the Sept. 11, 2001, attacks to attend secret testimony by two psychologists who waterboarded him 183 times.

The argument illustrates the on-again, off-again nature of the war crimes proceedings, whose rules generally exclude the defendants from classified testimony in the pretrial phase.

The psychologists, both former CIA contractors, began testifying in open court in January 2020. But their return to court to resume testifying has been on hold in part because the judge who heard it abruptly announced his retirement two months later, and in part because the pandemic paralyzed the proceedings for more than 500 days.

The overarching issues are whether admissions that the defendant in this case, Khalid Shaikh Mohammed, made years after the waterboarding were tainted by torture, and whether they can be used as key evidence in an eventual trial.

The psychologists, James E. Mitchell and John Bruce Jessen, were called to describe their use of “enhanced interrogation techniques” — which included waterboarding, bashing a prisoner’s head into a wall, extreme isolation, sleep deprivation and forced nudity — in a secret overseas CIA prison network in 2002 and 2003 to “condition,” as Mitchell testified, captives to answer questions on demand.

Mitchell said that the defendants had gained their free will by the time they were questioned by FBI agents at Guantánamo Bay in 2007. The psychologist testified that even before Guantánamo, Mitchell and Mohammed would at times sit together and chat while holding hands, as Middle Eastern men sometimes do.

Defense lawyers argue that the five defendants in the case were still so fearful that they could be tortured again that they told FBI interrogators at Guantánamo Bay what the CIA conditioned them to say. They have asked the judge to exclude the interrogations as the product of systematic U.S. government abuse.

In the short term, the question is whether Mohammed can watch when Mitchell returns to the court to testify in a closed national security session. No date for that session has been set.

Defense lawyers also argue that, because this is a death penalty case, the defendants are entitled to greater protections, including the right to attend secret testimony about which they might have knowledge. Prosecutors argue national security is at stake because the CIA still retains certain secrets about its overseas black site program, which began in 2002 and ended in 2009.

The judge, Col. Matthew N. Mccall of the Air Force, inherited the question from his predecessor, Col. W. Shane Cohen, who abruptly retired after Mitchell testified in open court across nine days in January 2020, and Jessen for one.

A prosecutor, Maj. Jackson T. Hall of the Air Force, said a person must have a security clearance to attend a classified war court session, meaning both the public and the defendants are barred. He cited just one exception — an accused terrorist can hear the classified information if it is something that the accused terrorist said.