To commemorate the 25th anniversary of 9/11, we’ve been examining the changes that day brought to America and the history it left behind. A key piece in this history is the military prison and war court established for War on Terror detainees — a term coined by the U.S. government — and the trials of Guantanamo Bay.
While the story of justice for those responsible for the terrorist acts on 9/11 continues to unfold, it’s imperative that the pieces of history left in this search are recognized by our nation. John Ryan, co-founder of the website LawDragon and author of “America’s Trial: Torture and the 9/11 Case on Guantanamo Bay,” plays a key role in this effort through persistent coverage of trials. He joined GBH’s All Things Considered host Arun Rath to discuss their time covering the trials in Gitmo and his findings over the years to discuss the importance of media coverage on the issue.
Please fast-forward eight minutes into the conversation to avoid topics on sexual assault and torture.
What follows is a lightly edited transcript of their conversation.
Arun Rath: It’s an amazing read, and I have to say, having experienced some of these things along with you, it’s just incredible. Before we talk about torture, though, there’s another legal issue you write about in the beginning of this book, which reflects in some ways just how complicated this pretrial was even before we get to torture as a topic. That is, the defense contending that a war court was not the right place to try these men because we were not at war with Al-Qaeda. Did I get that right?
John Ryan: That’s correct. I mean, I think the torture issue has eaten up most of the time in court, but this argument over whether we’re actually in hostilities with al-Qaeda has eaten up a lot of court time as well. And so I think from the defense point of view, and other critics of the court, is that this case should have been held in federal court. And the Obama administration, of course, planned that for some period of time, but that this would be kind of a really good material support for terrorism case in federal court and not a war crimes case. The idea being that we may have been at war after 9/11 when we invaded Afghanistan to rout the Taliban, but not before. And so if you can’t prove that we were at war prior to 9/11, then ... there’s sort of a jurisdictional challenge for the court.
Rath: And getting to the torture now, you know, it was striking for me that first session that I saw with you, because the previous sessions in Guantanamo, if anybody even came close to mentioning the word “torture,” the courtroom would shut down, and things couldn’t proceed. And now, all of a sudden — well, they were talking about what they could talk about. I mean, a lot of what a pretrial is about, almost all of what this one has been about, is what kind of evidence can be admitted. From both sides, you know — what counts, what’s in and out of bounds. Tell us what it meant for the war court that all of a sudden, the defense could talk about some of these details, at least, in open court.
Ryan: Yeah, getting those details from the Senate summary, and then more details in litigation after, has been probably, you know, the bulk of the proceedings really since that time. And so the government, of course, the prosecution team never planned on using what the defendants said at the black sites when they were being tortured. The government doesn’t use the word torture, but they acknowledge they were coercive interrogations. So the government wasn’t planning on using that, but it was planning on using what the defendants said after they arrived on Guantanamo Bay to the FBI. And those FBI confessions made about four months after they arrived from the black sites was considered — and still is, I think — the government’s best evidence. But the defense teams were entitled to argue that what happened before at the black sites by the CIA would impact the admissibility of the FBI confessions, that they were sort of tortured and conditioned into saying whatever their interrogators wanted. And so that’s why what happened at the CIA became such a focal point, as you said, fighting over this evidence, what’s going to be available And so that really has dominated the case.
Rath: And there’s also the aspect about torture where ... beyond the trial itself, the lawyers are looking towards post-sentencing. Explain how the abuse and torture of these men complicates their trial and/or sentencing legally, from a legal point.
Ryan: So far, two judges in the 9/11 case have said that the FBI confessions are suppressed — not to be used at trial — because of the abuse that happened before. So that’s really important. But yes, if we ever get to that trial and then a sentencing, the defense teams can use what happened at the CIA black sites in mitigation to sort of say that enough is enough. We’ve done enough to these detainees. We can’t execute them after torturing them. And so it’s important if we do get to that sentencing phase, this will be again important unless those, you know, as the sentencing comes through a plea deal, it might change a little bit. But right now, that’ll ... be relevant, perhaps the defense’s best evidence when it comes to whether or not there’ll be a death sentence.
Rath: I want to talk about some of the sessions that were around the end of 2016. And these are the ones that, I mean, they were honestly — I don’t need to tell you — they were difficult to sit through, even reporting. There were very detailed descriptions of the abuse of Mustafa al-Hawsawi. This was one of the defendants, not Khalid Sheik Mohammed, but we had seen him usually sitting very delicately on a cushion during the trial and never really knew why that was. And it came out at this point because during his interrogation, he was roughly — they called it rectal feeding, but he was roughly sodomized. There’s a chapter in your book about that.
Ryan: Yeah. I mean, I think ... it shows you sort of how the CIA program infected every aspect of proceedings at that hearing. At some of those hearings, we weren’t even really arguing, 'Well, this evidence shows that they were tortured into complying later with the FBI.’ What we were arguing then was that this person can’t sit in court. He’s not well enough to sit in court. He’s recently had a surgery. And so we need to delay the proceedings, right? So that’s another example where the program from the past impacts everything that goes on in court. But yeah, it’s quite graphic. You know, and I think as the case went on, there were more graphic details released. And in his ruling just recently, when the judge suppressed Khalid Sheik Mohammed’s confessions, he does reference the rectal rehydration as part of the abuse he suffered.
Rath: You’ve spent a lot of time with the defense teams, which consist of civilian and military lawyers. And I was thinking about that incident and Walter Ruiz, who ... started out as one of the military lawyers. And I’ve been struck again and again — we’ve talked about this, about the dedication of these military lawyers assigned to defend, or accused at least. But we know Khalid Sheik Mohammed was the mastermind, assigned to defend terrorists. And they do this with such dedication, it’s damaged their careers in some cases.
Ryan: Yeah, I mean, think about that a lot of these lawyers probably would’ve joined — and not just lawyers, the other professionals, the paralegals, the analysts, the interpreters, others who staff the teams — they would have perhaps joined the military because of 9/11, or at least their careers could have been shaped by the U.S. response to 9/11, right? So you have that where they probably thought maybe at the outset they’d be killing al-Qaeda terrorists or supporting those efforts, and now they’re defending them for the worst-ever crime in U.S. history. So it’s quite dramatic. And there are members, including Walter Ruiz, people who have left the military to stay with the defense teams. And that’s happened on the prosecution side as well, where people have departed the military but stayed with the case because they believe in the mission.
Rath: Talking about the defense attorneys, on the prosecution side, actually, at least through the end of 2016, the military commissions had, in good military tradition, they’ve been pretty accessible to the press. The chief prosecutor, Brigadier General Mark Martins, not only would he hold regular press conferences, I remember him just— you could just talk to him pretty much anytime. You could get him to sit down for an interview or just find him in the mess hall. And it was not trouble getting any access to the prosecution. But that changed, well, after Donald Trump took over as commander-in-chief, right?
Ryan: It actually occurred a bit before. I mean, the policies have changed, but in October of 2017, the office of the chief prosecutor, General Martins, announced that they would not be doing press meetings anymore. And the official reason was something to the effect of, as the cases get closer to trial, it may be inappropriate to make certain types of comments. That’s what we were told by the court spokesperson. But of course, I mean, you know, it was quite far from trial back then, whether or not, you know, that was really something the chief prosecutor, whether he really wanted to stop talking to us or whether that was sort of from above, we don’t really know, but it was a huge blow to transparency. You know, it’s already — it’s a court that already struggles with transparency because it’s in a remote place. Some of the proceedings are secret, the documents are hard to find on the website. And one of the great parts of it was you could always talk to General Martins about what the government’s thinking on this issue or the other. And then when he stopped that, it was really — it was a problem because you can’t always get the government’s position through court pleadings because those court pleadings are so often unavailable.
Rath: Right. And it’s something, you know, we had kind of gotten — I don’t want to say spoiled, but in the early days of Guantanamo, they would just put up court transcripts almost within the day, which for a reporter is just great. You know, a lot of people have talked about how this went from supposedly being the 9/11 trial to being the “Torture trial.” And I want to get your take on that. Does that mean that defense has been successful — at least in terms of establishing that narrative?
Ryan: I think that the details of the 9/11 attacks and the alleged roles of the accused have really not been a huge part of the proceedings. You know, it’s just a fact. If you sit in court, you don’t hear too much about 9/11. The prosecution team tries to work it in some hearings, absolutely. But the problem is that once it was determined that the defense teams could argue that the past torture of their clients by the CIA would lead to problems with evidence collected later, then they had to fight over all the evidence they were going to get about the CIA program, much of which remained classified, right? The locations of the black sites, the CIA personnel involved, by and large, still secret. Other details related to the program, still secret. So they spent years, literally years, fighting over what witnesses and evidence would be available for a suppression hearing.
Filing a motion to suppress a confession happens a lot in criminal cases, but you don’t normally spend years arguing about what evidence is going to be available just for that hearing. We’re not talking about the trial, we’re talking about what evidence and witnesses will be available for that hearing. And that took up years. So that’s really why the torture issue dominated so much of the proceedings. And then once that suppression hearing started over ... what impact the CIA program would have on the FBI confessions obtained later, that hearing started back in September 2019, and it really just sort of concluded. So, it just shows you how much it’s just consumed the case.
For the complete interview listen to the audio above.
