The 9/11 Trials: The Torture Question

Michael Isikoff asked one of the key questions about the conduct of KSM’s trial in a civilian court: whether or not he would be able to enter evidence of his torture into the trial. Holder basically answered–though he didn’t say it explicitly–that the charges and the prosecutions evidence will be designed such that the evidence of KSM’s torture will not be directly relevant.

Isikoff: [inaudible] harsh interrogation techniques. Inevitably, defense attorneys are going to seek full disclosure about the circumstances of how these detainees were treated while they were in US custody and get as much of that before the jury as they can. What is the department’s position on whether the defense will be entitled to know the full story of how these detainees were treated while they were in US custody?

Holder: Well, I think the question … among the questions that have to be asked in that regard is relevance. How relevant were those statements? Will those statements be used? I don’t know what the defense will try to do–it’s hard for me to speculate at this point, so it’s hard to know exactly what our response will be. But I’m quite confident on the basis of the evidence that we will be able to present, some of which I said has not been even publicly discussed before that we will be successful in our attempts to convict those men.

Isikoff: But will they be entitled to that evidence? Will they be entitled to know the full story of how they were treated?

Holder: Well, we’ll see what motions they file and we’ll see what responses we’ll make and a judge will ultimately make that determination.

29 replies
  1. earlofhuntingdon says:

    Our government tortured this man only when asking questions about crimes A-Q, not when asking questions about crimes R-Z. So we’ll charge him with crimes R-Z. He then can’t raise as a defense that we tortured him, because we did so only in connection with crimes A-Q.

    Of course, if crimes A-Q have no statute of limitations, then should the government lose on its prosecution of crimes R-Z, it can attempt to charge him in the SDNY or elsewhere on those other crimes. Or just keep him in permanent detention under a new, as yet undefined, illegal and unauthorized program that Obama says we absolutely, positively have to have.

    If that scenario were written in Spanish about a Chilean or an Argentine dictator, wouldn’t it read like a pleading at the ICC?

    • cinnamonape says:

      Here’s the interesting problem with this.

      What precisely did KSM tell the interrogators when he was tortured? How can we tell, without the documentation of these interrogations, what KSM told the government regarding his actions.

      So unless the prosecution embargos all evidence acquired after KSM’s detention and only uses evidence obtained prior to his capture, there will always be doubt as to whether the subsequent evidence is “derivative”.

      This will raise the issue that, if the Federal Government had adequate evidence to try and convict KSM before his capture and torture then why did they delay bringing him to a “speedy trial”?

    • gamd521 says:

      On what basis could KSM be found guilty of conspiracy?

      All the perps are dead and Massaui’s testimony is at best hearsay and at worst coerced, and therefore inadmissible. KSM’s own testimony is established to have been coerced and likewise inadmissible.

      On what remaining testimony or body of evidence could he be found guilty of his charges?

  2. MadDog says:

    Twill be interesting to see what the defense attorneys will do, and what they’ll be allowed to do.

    KSM seems to reject most, if not all, the standard defense attorney approaches, and instead merely wants a soapbox.

    We’ll see.

  3. MadDog says:

    And as to why AG Holder’s referrals back to the DoD’s military commissions for a bunch of the others, twas a typical politician’s non-answer.

    It’s pretty clear that if you are the head of the DOJ, abandoning Article III courts is a admission of failure that is obvious for all to see.

    • lawordisorder says:

      In time of war….you take the wins you can get… and get the …. moving on winning the end game her witch is the “rule of LAW”….but the again why listen to a couple of old squadis…… after all were the ones who has to put the saying in to doing no?

      Just my five cents worth (as nobody here at the coffeemaker no longer qualifies driving home legal)

      • bobschacht says:

        “During a time of war…”
        I don’t recall that Congress has declared war.
        For legal purposes, does that claim hold water, or is it only a publicity stunt intended to bamboozle the public?

        Anyone who uses this phrase should be called on it, and asked when Congress declared war.

        Legally speaking, does the AUMF qualify as a declaration of war?

        Bob “IANAL” in AZ

      • gamd521 says:

        It is absurd to claim that we as a country are at a state of war.

        Who are we at war with? Certainly not with the Iraqi people as a legimately recognized country nor with the same in Afghanistan. And even the US government itself has said as much.

        To claim that we are war with a group of people that mean to act against the US in reprisal for their grievances, is patently absurd. As a group this is an ill defined entity, you can not be at war against an ill defined group it doesn’t make any sense to say that.

        What the US government is engaged in is a military action within 2 countries, something it does all the time. In fact it has been doing so unabated since WWII.

        You can seek any justification you like for “the wins you can get” and you can choose to cling to this mythical claim of war that the government has so thoroughly convinced you of. But as you must know by now governments lie and what they have apparently convinced you of is an absurdity.

  4. earlofhuntingdon says:

    Glenn Greenwald calls this, in effect, heads I win, tails you lose forum shopping. KSM goes to NYC to pay the piper for 9/11. Al-Nashiri and unnamed others get the defunct military commission option instead of a day in an open and public federal court. Hmmm.

    As EW often says, beware the shiny object. It’s often less than it seems, and often distracts from equally or more important information the government does not want noticed. From Glenn:

    So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court. Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict. Others for whom conviction is less certain will be accorded lesser due process: put in military commissions, to which most leading Democrats vehemently objected when created under Bush. Presumably, others still — those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

    A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all. It’s a rigged game of show trials.

    • Hugh says:

      My reading is similar. Those whose prosecutions are too damaged to go forward due to torture go to the military commissions. Those like KSM who boasted in public about his role in terrorism can safely be tried in federal court regardless of the torture. It is all about forum shopping.

  5. Jeff Kaye says:

    Re the purported irrelevancy of the “torture question”… Well, it worked for prosecuting Padilla. They figure they can get away with it here.

    Only slightly OT, I see I was wrong, and the state is gearing up for a big military show trial for Nidal Hasan. Between it and the KSM trial, and assorted other news stories granted legitimacy, i.e., it is okay to discuss them, even functionally mandated, it will be guarantee that stories like EW’s on EFF’s FOIA requests, Patriot, most stories on torture, etc., will be relegated to the back pages, to gather dust for the historians of a future age.

    Hey, Durham, how’s your “review” coming along? (non-sequitur)

  6. lakezoarian says:

    KSM appears to be the emotional stand-in for OBL. And this happening in NY is like the response to NYCCAN — “here’s what real justice for 9/11 looks like.”

    I remember watching a Frontline 9/11 documentary and every time they showed KSM his face was colored red. They were trying that hard to make him bad that they had to color him red.

    This was an interesting in historycommons:

    “The US puts out an international arrest warrant for Khalid Shaikh Mohammed (KSM). The warrant seeks KSM in connection with the 1995 Bojinka plot (see January 6, 1995). [Knight Ridder, 3/13/2003] It is not clear why the US waited so long to issue this warrant, considering that the US connected him to a major terrorist act back in 1993 (see March 20, 1993), learned he was a major figure in the Bojinka plot in 1995 (see After February 7, 1995-January 1996), secretly indicted him in January 1996, and placed a $2 million reward on his head in January 1998 (see January 8, 1998).”

    I guess they were saving him for just the right time?

    From the Ommission Report:

    “By late 1998 or early 1999, Bin Ladin and his advisers had agreed on an idea brought to them by Khalid Sheikh Mohammed (KSM) called the “planes operation.” It would eventually culminate in the 9/11 attacks. . . . Within al Qaeda, they relied heavily on the ideas and enterprise of strong-willed field commanders, such as KSM, to carry out worldwide terrorist operations.….


    The 1993 bombing was also very interesting:

    “A few days after the attack, the FBI arrested Mohammed A. Salameh and his friend Nidal Ayyad as prime suspects. Salameh had been traced through a fragment of metal at the scene with the serial number of a Ford Econoline van belonging to a Jersey City Ryder rental agency. On March 4, 1994, a jury convicted four defendants on all 38 counts against them. On February 7, 1995, Pakistani authorities arrested Ramsi Yousef and extradited him to the United States. On January 8, 1998, Yousef was sentenced to 240 years in prison.

    No forensic evidence or eyewitness testimony was produced to place any of the suspects at the scene of the crime. Salameh had reported the van stolen to Jersey City police the day before the bombing. He was unable to provide the license plate number, having left the rental documents in the van. He also reported the theft to the rental agency, and attempted to retrieve his $400 deposit. On the day of the bombing he again telephoned the rental agency and obtained the license plate number. He then filed a second report with the police, this time with the plate number. 2”

    And this:

    “The New York Times reported last week that Khalid Sheikh Mohammed, the alleged mastermind of the Sept. 11 terror attacks, was waterboarded 183 times in one month by CIA interrogators. The “183 times” was widely circulated by news outlets throughout the world. . . . A U.S. official with knowledge of the interrogation program told FOX News that the much-cited figure represents the number of times water was poured onto Mohammed’s face — not the number of times the CIA applied the simulated-drowning technique on the terror suspect. According to a 2007 Red Cross report, he was subjected a total of “five sessions of ill-treatment.” “The water was poured 183 times — there were 183 pours,” the official explained, adding that “each pour was a matter of seconds.” The Times and dozens of other outlets wrote that the CIA also waterboarded senior Al Qaeda member Abu Zubaydah 83 times, but Zubayda himself, a close associate of Usama bin Laden, told the Red Cross he was waterboarded no more than 10 times.”


  7. Mary says:

    What Holder’s answer and Isikoff’s question both skip is the relevancy of KSM’s torture to – – – others. The man convicted in Pakistan for the same acts to which KSM confessed under US torture. KSM’s torture and its ties with Binyam Mohamed, or Padilla or Moussaoui or Sidddiqui or AZ or Memon etc or, for that matter, KSM’s torture representations made to courts and Congress as “intel” or given to other countries as “intel”

    The victim that basically generates the least sympathy is KSM, so that’s where they focus. But the victims of the torture were a much broader field. What homes were bombed with children in them – what countless deaths were generated in Iraq, based on the Office of the President of the United States becoming a conduit for the evil of state sanctioned, state solicited, torture. It’s not just that the torture included al-Libi and what was twisted from him to support the Bush-Cheney portals to war, it was the effect on other “analysts” of seeing what became acceptable.

    If the guys next door are disappearing people to be buried alive in Egypt and boiled alive in Uzbekistan to support the President’s war and they are profiting from those actions, what’s so wrong with fudging on a report on whether or not aluminum tubes can be used for nukes or whether a helium balloon station is a bioweapons lab? If the decision is already made to the point where men, women and children are being disappeared and some tortured to death in support of it, and none of “those” people are ever going to have to be brought to account – what’s so wrong with engaging in some profiteering?

    There’s not much that shows as “wrong” viewed through the prison of a state sponsored torture regime.

    • bmaz says:

      Well, yes, but more germane perhaps are the “poisoned fruit” and cross pollination of torture evidence. For instance, okay, they do not use any evidence against KSM that was derived from his own torture; but what about that from the torture of others? What about the derivative fruits from the same? Just saying you will not use a defendant’s own torture statements against him is but a part of the equation; there is a whole different part that seems to be being ignored.

      • Mary says:

        Exactly – I was using him as the springboard (what about his torture statements vis a vis their impact on other criminal/military commission defendants like Siddiqui or Padilla etc. and on victim not facing any trial or charges like Binyam Mohamed, or on victims not facing any trial and who have now been ultimately disposed of like al-Libi and Menom), but it comes back the other way as well.

        But while I pretty much expect all the poisened fruit issues to be raised in criminal defense contexts even though the journos aren’t asking the questions now, the parts that I think are hugely overlooked and which will not be addressed are the uses of that torture to mislead courts and the uses of torture to mislead Congress – iow, the affirmative use by the Exec branch of torture to manipulate the other two branches of govt. Even to the point of directly causing the deaths of US soldiers and civilians of many nations. For all the NSA’s supposed concern for domestic propaganda, the courts and Congress has been more than pliant when it comes to the Executive using torture to mold policy and law, statutory and court made. Once government is shaped by torture in all branches, then what?

    • earlofhuntingdon says:

      And to bmaz @ 13, that probably is the nub. We won’t use A’s statements under torture to attempt to convict B, we’ll use B and C’s statements – under torture – in an attempt to convict A. Does A have standing to raise the issue of B and C’s torture?

      How would that happen, especially if what the government tries to introduce are not B and C’s statements, but the fruits of investigations made from them, which do no tie directly either to B and C themselves or their statements.

      How will the predictable “state secrets” defense play out when defense counsel raise such issues? Would it be prudent for Congress to enact its limitations on the use of state secrets before these cases comes to trial?

  8. Hugh says:

    Thank you by the way for putting up Holder’s statement in a previous thread. This bit caught my eye:

    Because many cases could be prosecuted in either federal courts or military commissions, that protocol sets forth a number of factors – including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated – that must be considered

    I think we can read in the word “torture” for the part in bold.

    • gamd521 says:

      Why should any of these considerations that Holder sites have any bearing on where a due process trial before an impartial jury is held.

      It assumes that military justices are more fair and more able to keep secrets than civil justices, and we have bo reason to beleieve that. There is nothing inherent about being in the military that makes a justice or lawyer better in any way. If the military tribunal is to given preference over a civil court then it must be shown that the outcome will be fairer in that military court.

      No such evidence exists. I would argue that a less fair trial is more likely.

  9. PAR4 says:

    Why didn’t Isikoff ask the obvious follow-up. If there was torture why aren’t there prosecutions of that? So, we have an AG complicit in war crimes trying terrorists in the city where their attack happened. USA USA

    • cinnamonape says:

      Or “given that you are saying that the torture of KSM and others might taint the trial…since statements he made after arrest may be excluded from evidence…you are admitting that torture did happen, and could risk a successful prosecution?”

  10. Cujo359 says:

    Holder: Well, we’ll see what motions they file and we’ll see what responses we’ll make and a judge will ultimately make that determination.

    IIRC, this is how the Padilla trial went. Ultimately, the judge(s) ruled that his treatment was not germane to the trial. This seemed an especially odd ruling to me, since his treatment appeared to make it difficult or impossible for him to participate in his defense.

  11. worldwidehappiness says:

    It seems to me that once a prisoner knows he might be tortured, all the statements he makes become unreliable.

    For many people it’s hard to answer an interrogator straightly in a non-torture environment.

  12. Sara says:

    You know, we haven’t seen the indictments yet, so we hardly know the scope of the trial. I suspect we can rightly guess Bojinka will be one of the indictments, based on pre 9/11 evidence used to get the original inductment, but we don’t know any of the other charges.

    But a few assumptions — they probably have considerable documentary evidence — some financial records, some electronic data, perhaps witnesses not currently identified who have, for years, been in some sort of witness protection program. In the 90’s, they had some former al Qaeda members who essentially turned states evidence. Perhaps since 9/11 they have collected a few others. (they had one in Ramzi’s Bojinka trial, a young man recruited to place the bombs on airliners, who turned himself in in Pakistan.)

    Today, in one radio interview, it was mentioned that the video tapes from the KSM interviews given in Karachi to an al Jazeera Journalist before the bin al Shibh arrest (Sept, 2002) are available for trial use. Apparently they are several hours long, and narrate the whole planning and execution process for 9/11. Yes, they would have to survive validation — but assuming this is possible, you have evidence that predates arrests. If other documentary evidence sustains details made on the tapes, you have a fairly strong trial exhibit that doesn’t touch on torture issues.

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