Lost witnesses and faded memories hinder progress in the 9/11 case

Four years ago, in dramatic testimony, an American psychologist described in open court how he threatened to cut the throat of the young son of Khalid Shaikh Mohammed, the accused mastermind of the 9/11 attacks, if another Qaeda attack claimed the life of an American child.

On Wednesday, dr. James E. Mitchell told a stunned courtroom that the episode did not happen. “I didn’t say anything about killing his son,” said Dr. Mitchell, a retired Air Force psychologist who in 2003 gave Mr. Mohammed 183 times to the CIA “He didn’t have sons until later.”

dr. Mitchell later admitted that he had forgotten his threat. But the episode underscores a new challenge for the court-martial in the case against four inmates accused of plotting the attacks that killed nearly 3,000 people on Sept. 11, 2001: fading memories and the unavailability of witnesses whose testimony is key to getting the death penalty case to trial. .

Testimony and other evidence often deteriorates over time, which is one reason criminal defendants and their victims have the right to a speedy trial.

This month, two retired military officers were too ill to travel to Washington to testify about the defendants’ health and prison conditions at Guantanamo in early 2007. It was a critical period in the case, when prosecutors say the defendants voluntarily confessed to their crimes. . Defense lawyers argue that the confessions are contaminated by torture and covert cooperation between the FBI and the CIA

One witness was the first psychiatrist of the accused in Guantanamo. The other was their first prison commander. A third key witness from that period, the first doctor for Guantanamo detainees, died in 2018 before he could hear his testimony.

in November, Jacqueline Maguirea senior FBI official, has said 199 times that she doesn’t remember specific information from when she was a first-year special agent investigating the five hijackers who hijacked the plane that crashed into the Pentagon.

Make Dr. Mitchell to remember was easy enough. Muhammad’s lawyer showed him page 31,362 of the transcript of the pre-trial hearing with his testimony from January 2020. In it, Dr. Mitchell explained that he consulted with a CIA lawyer during the period when he was running Mr. Mohammed and that he was told that his threat to kill his prisoner’s son was on parole.

dr. Mitchell, now in his 70s, said the passage “triggered” his memory. But not completely. He testified this week that in the 2003 threat, he “referred to a son who had just been born.” Mohammed’s lawyer, Gary D. Sowards, responded that the newborn was a girl, even though Mr. Mohammed had four older sons.

Unsuccessful memories are increasingly emerging in the pretrial phase, which began with the indictment in 2012. Instead of trying to immediately bring accused 9/11 conspirators to justice, the George W. Bush administration brutally interrogated them in 2002 and 2003 as would try to uncover more unsolved attacks — and then kept them incommunicado for years at so-called black sites, a circuitous route whose details are still classified.

Anisha P. Gupta, a defense attorney, told a judge last week that she tried to talk to two key, if anonymous, witnesses about what was done to her client, Walid bin Attash, in CIA prisons — and was told that one was dead, and the other “has dementia and can’t talk to us”.

One potential witness, the CIA’s top investigator into its black prison network, died before the men were charged. In 2003, a police officer had medical officers “rectally rehydrate” Mr. Mohammed because he refused to drink some water during the interrogation. Medical experts have discredited the procedure; lawyers call it rape.

Colonel Matthew N. McCall, the judge, appears poised to rule on the question of whether all this anonymity and denied access to CIA witnesses constitutes an obstacle to a fair trial. But Colonel McCall is retiring later this year. He may have to leave that issue to the next judge, who will be the fifth to preside over the Guantanamo case.

The problem of witnesses dying or details being forgotten also plagues the government’s case. Lee Hanson, whose son, daughter-in-law and two-year-old granddaughter were killed aboard United 175, volunteered early to give a victim impact statement at the final trial. He died in 2018.

Prosecutors arranged in advance to record his testimony. But a judge would have to decide, if there is ever a conviction, whether it can be used at trial.

Last week, retired FBI agent James Fitzsimmons required headphones to hear the lawyers standing just feet away from him inside the courtroom. He appeared to misunderstand the military attorney’s question and said he was not aware of a CIA program that secretly used FBI agents to interrogate suspects at black sites.

This week, Clayton G. Trivett Jr., the prosecutor in the 9/11 case, made a rare correction to the record by announcing that Mr. Fitzsimmons was actually assigned to the program and that he worked for the CIA as an interrogator at the agency’s black site at Guantanamo, which opened in 2003 and closed in 2004. It was the first public identification of an FBI agent who was in the program.

Memory figured heavily in the testimony of dr. Mitchell this week as prosecutors tried to bolster their case that the suspects had voluntarily incriminated themselves.

In lengthy testimony, he explained the psychological theory “fear of extinction” and his assessment of how it applied to Mr. Mohammed: Yes, waterboarding and other violent “enhanced interrogation techniques” were used on Mr. Mohammed during his first month in the CIA prison network. But, said dr. Mitchell, the prisoner was then interrogated more than a thousand times during his next three years in agency custody and regained a sense of control over his actions and consequences, freed from CIA conditioning—because the violence did not recur.

Health problems have also dampened progress during the pandemic. On Thursday, the judge postponed more testimony from dr. Mitchell, which was supposed to last over the weekend because one of the death penalty lawyers, whose presence in court is mandatory, tested positive for the coronavirus at Guantanamo Bay.

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