Military commission judge Col. James Pohl ruled Friday that “the Government will not be permitted [to] introduce any FBI Clean Team Statement from any of the Accused for any purpose” during the trial of Khalid Shaikh Mohammad and his co-defendants Walid bin Attash, Mustafa al-Hawsawi, Ramzi Binalshibh and Ammar al-Baluchi (aka Ali Abdul Aziz Ali). Each of the defendants stands accused of various offenses related to the 9/11 terrorist attacks. From 2002 to 2006, each was interrogated and allegedly tortured by U.S. government personnel at undisclosed locations overseas. Judge Pohl’s decision, not yet available on the military commissions website but obtained and first reported by the New York Times’s Charlie Savage, is a significant blow to the prosecution and underscores the ongoing impact that allegations of torture are having on military-commission proceedings.

The ruling comes after nearly a year of litigation over the government’s September 2017 guidance directing that “the Defense should make no independent attempt to locate or contact any current or former CIA employee or contractor, regardless of that individual’s cover status,” as well as al-Baluchi’s subsequent motion to dismiss, or in the alternative, to compel production of CIA witnesses for interview. The defense sought access to these witnesses in part to challenge the voluntariness of statements that the defendants provided to an FBI “clean team”—meaning personnel not previously involved in the defendants’ interrogation—in 2007, after their transfer to Guantanamo Bay. The government contends that these statements were sufficiently separated from any interrogation involving torture techniques to support the conclusion that the defendants’ statements were voluntary. The defense contends that the lingering coercive effects of the defendants’ detention and alleged torture rendered any such statements involuntary and thus inadmissible. Lawfare coverage of the motion series (primarily Appellate Exhibit 524) can be found here and here.

Defense attorneys specifically sought to interview individuals who possess information related to the CIA’s rendition, detention and interrogation (RDI) program between 2002, when the first of the defendants was captured by the United States, and 2006, when they were transferred to the Guantanamo Bay detention facility. The witnesses sought by the defense fall into four categories, as described by Pohl: (1) overt CIA personnel whose RDI involvement is unclassified; (2) overt CIA personnel not involved in RDI; (3) overt CIA personnel whose RDI involvement is classified; and (4) covert CIA personnel. According to the defendants, the individuals sought may have knowledge regarding the use of coercive interrogation techniques, the defendants' reaction to those techniques, and subsequent interrogations of the defendants before their transfer to Guantanamo Bay.

Beginning with the September 2017 letter, the government sent the defense a series of guidance documents imposing limitations on the defense teams’ ability to independently investigate and contact RDI-affiliated individuals, in order to “protect[] very sensitive classified information.” The evolving guidance, which Judge Pohl noted was “sometimes conflicting,” reflected the government’s position that allowing the defense free reign to investigate the RDI program risks disclosure of: (1) the identity of covert CIA persons; (2) the classified connection of CIA persons to the RDI program; and (3) other classified CIA information prior to a classification authority making a determination that defense attorneys have the required “need to know” the classified information.

Judge Pohl acknowledged the fundamental tension “between (a) the Defense's ability to conduct an independent investigation that is not unreasonably impeded by the Government and right of equal access to witnesses and evidence, and (b) the Government’s need to protect classified information, disclosure of which could reasonably cause damage to the National Security.” He refused to “compel the Government to produce persons whose identities and/or involvement in certain CIA programs is classified.” Yet he aimed to strike an appropriate balance by issuing a modified protective order that “is reasonable and provide[s] the Defense with substantially the same ability to make a defense as would discovery of or access to the specific classified information.” The protective order would “prevent[] the Defense from eliciting information that (1) reveals the foreign countries in which the Accused were detained until 6 September 2006; (2) would reveal the names, identities, and physical descriptions of any persons involved with the capture, transfer, detention, or interrogation of the Accused from time of capture until 6 September 2006; and/or (3) would reveal the Accused’s dates of transfer beyond month and year.” Additionally, with respect to classified information the CIA witnesses possessed about areas other than the RDI program, the witnesses would be individually responsible for coordinating with the original classification authority to determine releasability.

That said, even after narrowing the scope of the restrictions imposed on the defense’s ability to investigate and interview CIA witnesses, Judge Pohl determined that the protective order would still deny the defense “substantially the same ability to investigate, prepare, and litigate motions to suppress the FBI Clean Team Statements.” Specifically, the defense would not be able “to develop the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in CIA custody the Defense alleges constituted coercion.” Consequently, to restore some sense of parity between the parties, Judge Pohl found it necessary to disallow government use of the defendants’ FBI "clean team" statements. The defense did, however, have enough information about the defendants’ conditions of confinement while subject to the RDI program to sufficiently prepare the case for mitigation at sentencing.

In sum, Judge Pohl denied the defense motion for discovery and witness information in AE 524Q (AAA); denied the defense motion to dismiss, or alternatively, to compel witnesses for interview in AE 524 (AAA); granted in part the government’s motion for a protective order in AE 524L (Gov); and barred the government’s introduction of the FBI clean-team statements for any purpose. The government has not yet indicated whether it intends to appeal Judge Pohl’s ruling, though this seems likely. The next oral argument session in the 9/11 military commission is scheduled for Sept. 10-14.