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September 07, 2018

September 11 Trial Update: New Decision Highlights the Strategic Consequences of Torture

Last week, a Guantanamo military commission judge ruled that statements made by five detainees suspected of being involved in the September 11 attacks are inadmissible in court because of their treatment during previous interrogations. This outcome highlights that torture is not only wrong, but strategically damaging to counterterrorism efforts as well.

The five detainees made statements to FBI agents following interrogations where they were subject to the “enhanced interrogation” techniques of the CIA’s Rendition, Detention, and Interrogation program. Although the FBI agents who took these statements were not involved in these interrogations, their defense attorneys objected to the use of the statements at trial, saying that the detainees were still enduring the after effects of their brutal treatment.

The prosecution would not allow the defense attorneys access to potential witnesses who may have information about the defendants’ CIA interrogations and their reactions to those interrogations. The defense argued that they needed to interview these witnesses to properly investigate their clients’ treatment in order to demonstrate that the effects of such treatment carried over into the FBI interrogation phase. Instead, the prosecution provided summaries of these witnesses’ acts and observations. Judge Pohl found the summaries to be inadequate substitutions for actual witness interviews and ruled that the FBI statements were therefore inadmissible in court.

These are the real and current consequences of the CIA’s use and cover-up of torture. The CIA’s torture program has been roundly condemned by retired military leaders and professional interrogators, who have repeatedly said, “torture and other forms of detainee abuse are not only immoral and unlawful, they are ineffective and counterproductive in gathering reliable intelligence.” 

Additionally, the government’s refusal to allow more information to be brought forward is further bogging down the already gruelingly-slow process of the military commissions. Military commissions have repeatedly gotten caught up in procedural issues such as this. The September 11 case has been stuck in pre-trial since 2012. And of the 8 convictions made by military commissions, three were overturned completely and one was partially overturned. 

Meanwhile, the federal courts have proved much more efficient and capable of handling complex terrorism prosecutions. Since September 11, there have been over 660 convictions on terrorism-related charges in the federal courts. In 17% of these convictions, the subject was captured abroad. Federal courts are also required to give defendants a speedy trial. Indeed, experts have said that had the 9/11 trial been held in federal court, it would likely be long over by now and could have brought some closure to the victims’ families. 

As the setbacks in the 9/11 case continue, this shows once again how strategically harmful torture is for our national security and why humane treatment is essential for effective counterterrorism.