Trying Khalid Sheikh Mohammed in Guantanamo: What To Do About Seemingly Coerced Statements?

In light of the news (embedded above) that KSM and other 9/11 plotters will be tried in a military commission in Guantanamo, I thought it was appropriate to post to SSRN a symposium article entitled A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements.  The article focuses on the impact that abusive and coercive interrogation techniques will have on the admissibility of later statements derived from non-abusive, non-coercive interviews.

Were subsequent, legal, and humane interviews of KSM, indelibly impacted by the “taint of torture” regardless of how they were conducted? Accordingly, are statements made in those subsequent non-coercive settings inadmissible on voluntariness grounds?

This article first details the coercive interrogation techniques authorized against suspected terrorists detained in Guantanamo Bay Cuba. Next, the article details the changing circumstances of detainee custody and treatment to set the stage for a discussion of whether earlier abuses, if corroborated, will invalidate subsequent statements made by the victims of that abuse.

I explain how the U.S. government, recognizing that its earlier interrogation tactics may have jeopardized its legal case against the detainees implemented “clean teams.” Building off of these factual premises, I next synthesize the tests a judge will need to apply in order to determine the admissibility of seemingly voluntary post-abuse statements. In this synthesis I highlight how factors such as the time between statements, change in location, change in identity of interrogators, nature of the previous unlawful interrogation methods, and use of illegally procured statements as leverage in obtaining new statements each impact the admissibility analysis.

Statement of the Attorney General: Obama’s Decision to Now Prosecute 9/11 Conspirators by Military Commission in Guantanamo

In November 2009, I announced that Khalid Sheikh Mohammed and four other individuals would stand trial in federal court for their roles in the terrorist attacks on our country on September 11, 2001.

As I said then, the decision between federal courts and military commissions was not an easy one to make.  I began my review of this case with an open mind and with just one goal:  to look at the facts, look at the law, and choose the venue where we could achieve swift and sure justice most effectively for the victims of those horrendous attacks and their family members.  After consulting with prosecutors from both the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court.  I stand by that decision today.

As the indictment unsealed today reveals, we were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators – one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor.  We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.  We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence.  Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Unfortunately, since I made that decision, Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue.  As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security.  Decisions about who, where and how to prosecute have always been – and must remain – the responsibility of the executive branch.  Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments.  Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.  We will continue to seek to repeal those restrictions.

But we must face a simple truth:  those restrictions are unlikely to be repealed in the immediate future.  And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice.  I have talked to these family members on many occasions over the last two years.  Like many Americans, they differ on where the 9/11 conspirators should be prosecuted, but there is one thing on which they all agree:  We must bring the conspirators to justice.

So today I am referring the cases of Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense to proceed in military commissions.  Furthermore, I have directed prosecutors to move to dismiss the indictment that was handed down under seal in the Southern District of New York in December, 2009, and a judge has granted that motion.

Prosecutors from both the Departments of Defense and Justice have been working together since the beginning of this matter, and I have full faith and confidence in the military commission system to appropriately handle this case as it proceeds.  The Department of Justice will continue to offer all the support necessary as this critically important matter moves forward.  The administration worked with Congress to substantially reform military commissions in 2009, and I believe they can deliver fair trials and just verdicts.  For the victims of these heinous attacks and their families, that justice is long overdue, and it must not be delayed any longer.

Since I made the decision to prosecute the alleged 9/11 conspirators, the effectiveness of our federal courts and the thousands of prosecutors, judges, law enforcement officers, and defense attorneys who work in them have been subjected to a number of unfair, and often unfounded, criticisms.  Too many people – many of whom certainly know better – have expressed doubts about our time-honored and time-tested system of justice.  That’s not only misguided, it’s wrong.  The fact is, federal courts have proven to be an unparalleled instrument for bringing terrorists to justice.  Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences.  There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.  Our national security demands that we continue to prosecute terrorists in federal court, and we will do so.  Our heritage, our values, and our legacy to future generations also demand that we have full faith and confidence in a court system that has distinguished this nation throughout its history.

Finally, I want to thank the prosecutors from the Southern District of New York and the Eastern District of Virginia who have spent countless hours working to bring this case to trial.  They are some of the most dedicated and patriotic Americans I have ever encountered, and our nation is safer because of the work they do every day.  They have honored their country through their efforts on this case, and I thank them for it.  I am proud of each and every one of them.

Sadly, this case has been marked by needless controversy since the beginning.  But despite all the argument and debate it has engendered, the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points.  At the end of our indictment appear the names of 2,976 people who were killed in the attacks on that deadly September day nearly ten years ago.  Innocent Americans and citizens of foreign countries alike who were murdered by ruthless terrorists intent on crippling our nation and attacking the values that we hold dear.  This case has always been about delivering justice for those victims, and for their surviving loved ones.  Nothing else.  It is my sincere hope that, through the actions we take today, we will finally be able to deliver the justice they have so long deserved.

A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements

I’ve posted the abstract to a recent symposium article A Cup of Coffee After the Waterboard: Seemingly Voluntary Post-Abuse Statements” to SSRN, but unfortunately I don’t have a .PDF of the final page proofs to post yet.  Here is the abstract of the article which appears in Volume 59 of the DePaul Law Review (official citation 59 DePaul Law Review 943 (2010):

This symposium article focuses on the impact that abusive and coercive interrogation techniques will have on the admissibility of statements derived from non-abusive, non-coercive interviews. Were subsequent, legal, and humane interviews indelibly impacted by the “taint of torture” regardless of how they were conducted? Accordingly, are statements made in those subsequent non-coercive settings inadmissible on voluntariness grounds? This article first details the coercive interrogation techniques authorized against suspected terrorists detained in Guantanamo Bay Cuba. Next, the article details the changing circumstances of detainee custody and treatment to set the stage for a discussion of whether earlier abuses, if corroborated, will invalidate subsequent statements made by the victims of that abuse. I explain how the U.S. government, recognizing that its earlier interrogation tactics may have jeopardized its legal case against the detainees implemented “clean teams.” Building off of these factual premises, I next synthesize the tests a judge will need to apply in order to determine the admissibility of seemingly voluntary post-abuse statements. In this synthesis I highlight how factors such as the time between statements, change in location, change in identity of interrogators, nature of the previous unlawful interrogation methods, and use of illegally procured statements as leverage in obtaining new statements each impact the admissibility analysis.

Another Delay in the Trial for Alleged USS Cole Killers

Tom Joscelyn notes that the Obama administration has delayed the trial by military commission of Abd al Rahim al Nashiri, the mastermind of the USS Cole attack, according to the

USScolebombers.jpg

Washington Post. The Defense Department denies this, saying in a statement that prosecutors ‘are actively investigating the case against Mr. al-Nashiri and are developing charges against him.’

Tom finds it hard to believe that it’s taking this long to put together a 10 year old case, and I agree that something seems fishy.  In fact, as Tom highlights “the Post talked to some ‘military officials’ who ‘said a team of prosecutors in the Nashiri case has been ready [to] go to trial for some time.’”

So what is holding this up, politics of course.  From the Post:  “‘Its politics at this point,’ said one military official who spoke on the condition of anonymity to discuss policy. He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantanamo Bay.”

It’s not like there isn’t sufficient public evidence to proceed against Nashiri, consider the admissions he made during his CSRT (as Tom summarizes):

Tribunal Member: How many times did you meet Osama bin Laden and did you take money from him every time?

Nashiri: Many times. I dont remember what year I met Osama bin Laden. What year, I dont remember. I dont remember what year. Maybe 96 or 95. And during that time whenever [I] went to Afghanistan I just stop by and visited him. And if I needed money I would just ask him and he would give money to me.

Tribunal Member: What was the money used for? And, how much did you take?

Nashiri: Personal expenses. Many times I would tell, give me three of four thousand dollars and he would give them to me. And I use them as personal expenses. When [sic] went to have a project in Yemen, I took money from him several times. I don’t know the total amount of money. Maybe ten thousand. After that five thousand. And the second project after that. After the Cole incident ended[,] I wanted to have a fishing project in Pakistan and a wooden ship in Dubai. I also ask Usama bin Laden to support me.So the bottom line is that I took money from Usama bin Laden for a fishing project. I was under the impression that the project was mine. And it was a fishing project. I didn’t care about Usama bin Laden. If the project succeeded, I would have paid the money back to Usama bin Laden. That’s it. I understood it as being a loan. But when he told me that we could use this for bombing something…

”Nashiri goes on to say that he pulled out of the deal with bin Laden when the terror master started talking about using Nashiri’s fishing boat for, you know, terrorism – just as al Qaeda did in the attack on the USS Cole.  Nashiri conceded that he knew the Cole plotters (“…I got to know the people who were involved in the explosion”), but claimed that they were part of his fishing enterprise (“We were also, we were planning to be involved in a fishing project”). Nashiri also conceded that he used money from Osama bin Laden to purchase explosives, but said the explosives were going to be used to dig wells…”

Read Tom’s full post here.

What to do about Guantanamo

On February 22, at Noon I will be giving a speech at Temple University.  The topic of the speech is “What to do about Guantanamo?”  My remarks will focus on the challenges associated with closing the detention facility, and the broader challenges of detaining and trying suspected terrorists.

Justice task force recommends about 50 Guantanamo detainees be held indefinitely

Exactly one year has passed since President Obama declared he would close Guantanamo.

And today, The Washington Post reports that his Department of Justice Task Force will recommend “that nearly 50 of the 196 detainees at the U.S. military prison at Guantanamo Bay, Cuba, should be held indefinitely without trial under the laws of war.”  How long will we have to wait before human rights groups begin to call President Obama a war criminal?  How long until those who called for President Bush’s indictment by an international tribunal make the same call? 

Don’t hold your breath.  Back in 2005 Amnesty International called Guantanamo “the Gulag of our times”  equating the Bush administration to war criminals.  Now, their tune has moderated –of course in their eyes it is still bad that Guantanamo remains open– but they’ve toned down their Gulag language and now we hear “people around the world who care about human rights and the rule of law will be extremely disheartened” by President Obama’s failure to close Guantanamo.  Disheartened is probably an improvement from the dyspepsia which gripped most of these people during the Bush administration. 

Not to be outdone in moderation, Anthony Romero of the ACLU blandly stated (more…)

“After Guantanamo: The Way Forward” Four Roundtables on Reconciling National Security and the Rule of Law

On Friday September 11, 2009 The Frederick K. Cox International Law Center at Case Western Reserve University School of Law will host Four Roundtables Reconciling National Security and the Rule of Law. 

I’m presenting on the first panel with Larry May (Vanderbilt), Keith Petty (U.S. Army), Mike Newton (Vanderbilt), Morris Davis (USAF Ret.).  The panel will be moderated by Bob Strassfeld (Case Western).  Our topic is “A Retrospective on the Military Commissions.” 

The event will be Webcast live from this link

Here is the rest of the agenda:

SCHEDULE
8:00-8:30 AM: Registration and Coffee – Ground floor Rotunda

8:30 AM: Introduction – Professor Michael P. Scharf, director, Frederick K. Cox International Law Center, Case Western Reserve University School of Law

8:45-9:30 AM: Opening Lecture – General John D. Altenburg, Jr., Of Counsel, Greenberg Traurig; former Convening Authority, Military Commissions

9:30-9:45 AM: Break
(more…)

Discussing GITMO on WITF Radio (Call in show)

guantánamo bay, brooklynUPDATE:  The radio show is now available for download.  Click here to listen or download. 

Tomorrow morning from 9am-10am (Thursday July 23, 2009) I will appear for an hour on “Smart Talk” WITF-89.5FM and 93.3FM.  The topic is Guantanamo, the detainee task force, and President Obama’s approach to counterterrorism. 

Leonard Rubenstein of the US Institute of Peace will also appear on the show.  Leonard is the former director of Physicisans for Human Rights, and an expert on health and human rights during conflicts.  I’m looking forward to engaging in a dialogue with him and with callers (it’s a call in show). 

For those of you outside the Harrisburg PA listening area you can listen live here.  The call in number is 1-800-729-7532.

Creative Commons License photo credit: chris.szabla