Guantanamo Bay, Cuba — The presiding judge in the Guantanamo Bay military commissions case against the alleged plotters of the 9/11 terrorist attacks said he’d have to decide whether U.S. interrogators tortured the accused men.
“I guess I’ll have to rule on that,” said Col. W. Shane Cohen, who is on the bench for the proceedings at Naval Station Guantanamo Bay. The judge made the comment amid a contentious back-and-forth on Friday, as the lawyer for al Qaeda money man Mustafa al Hawsawi repeatedly called the CIA’s so-called enhanced interrogations program “torture.” The lawyer used the term while he grilled Dr. James Mitchell, the psychologist widely seen as the architect of the agency’s harsh interrogation techniques in the wake of the Sept. 11, 2001 attacks.
“I know torture is a dirty word,” Walter Ruiz, the dark-bearded defense attorney, dressed in all black, said.
Ruiz listed allegations of what his client faced while in CIA custody, when he says interrogators bounced him off a wall, hung him from the ceiling nude, slapped him in the face, hit his head against a wall, doused him in an ice bath, and anally injured him through an unnamed means. Mitchell was not directly involved in those interrogations, and they may have been carried out under the supervision of the CIA’s former chief of interrogations, known in court only as “NX2,” but believed to be the now-deceased Charlie Wise.
“Did you have any sense of how those tortures effected Mr. Hawsawi?” Ruiz said. “Did it matter?”
The prosecution objected, calling the questioning argumentative and saying the judge hadn’t ruled on the torture issue. After discussion between Ruiz and Cohen where Ruiz continued to call it torture, Mitchell answered.
“I reject your characterization that EIT’s were torture,” said the white-bearded psychologist, dressed in a dark suit with a white shirt and a blue-and-red striped tie. He believed the interrogation methods followed specific guidelines, he said, and that they were authorized by the president in consultation with the National Security Council, were greenlit by Justice Department memos, were approved by the CIA, and were “closely monitored.”
“If you did the same thing today, would it be torture?” Ruiz asked. The prosecution again objected, and the judge jumped in.
“EIT’s. Torture. I’ll let you guys call them what you want to call them,” Cohen said, but suggested that a back-and-forth debate over what is and isn’t torture wouldn’t elicit the information Ruiz was seeking. “You can use it, but then we’ll argue about whether or not it was torture for 25 minutes … We’ll see what information you’ll get by continuing to use the word torture.”
“I’m not going to sanitize this,” Ruiz insisted.
“I understand there are agendas on both sides, but my only agenda is to follow the law,” Cohen said. “I will need to rule on these motions … The only opinion that matters is mine.”
Cohen later said he hoped Ruiz understood “we can banter about things” and laid out what he saw as his responsibility to reach a decision about the interrogation methods.
The judge told the prosecution and defense that a ruling about torture “can be a finding of the court eventually,” though it would be “premature” to decide on it now, and “your opinion on whether it is or it isn’t has no bearing on me.”
“I know people throw around terms in the vernacular,” Cohen said, but “I’ll have to apply the legal definitions.” He referenced the U.S. criminal code prohibiting torture committed by public officials, the Fifth Amendment protecting the rights of the accused, the Eighth Amendment banning cruel and unusual punishment, and the United Nations declaration against cruel, inhuman, or degrading treatment or punishment.
“The opinion of the Department of Justice, the attorney general, or even the president of the United States is not binding on me,” the judge declared.
Mitchell was called by the defense as part of its effort to get defendants’ confessions to the FBI ruled inadmissible due to the treatment the alleged terrorists received while in U.S. government custody. In 2002 and 2003, CIA psychologist Mitchell personally waterboarded al Qaeda facilitator Abu Zubaydah, the alleged plotter behind the USS Cole bombing. Mitchell also waterboarded alleged 9/11 mastermind Khalid Sheikh Mohammed. The psychologist also criticized abuses at some CIA black sites carried out by agency interrogators beyond his supervision.
Hawsawi and Mohammed face the death penalty if convicted, along with Mohammed’s nephew Ammar al Baluchi, alleged 9/11 hijacker trainer Walid bin Attash, and 9/11 facilitator Ramzi bin al Shibh.
The defense attorneys have striven to paint the CIA’s enhanced interrogation program as synonymous with torture and have worked to tie the agency’s actions to the FBI, claiming the “clean” interrogations conducted by the FBI after the detainees were transferred to Guantanamo Bay in 2006 should be tossed.
The admissions to the FBI were thrown out by one previous judge then reinstated by another. Cohen, who took over the case last year, will need to decide what his ruling will be prior to the start of the trial, which is slated for January 2021.
Prosecutor and Marine Corps officer Jeffrey Groharing previously argued the confessions were “some of the most critical evidence in this case” when pushing back against the defense’s efforts to suppress it.
Later during the Friday hearing, Ruiz brought up the treatment of Nashiri at the hands of “NX2.” Mitchell previously had condemned that treatment.
“Was that, in your opinion, torture?” the defense lawyer asked.
Objections were raised again, and Mitchell was pulled out of the room as Ruiz said he wanted answers about the psychologist’s “brutality barometer.”
“He definitely testified that what happened to Mr. al Nashiri happened way outside the legal limits,” Cohen said. “Whether it was torture or not torture, he thought it was wrong … and he even reported it.”
The judge allowed the lawyer to ask a different question.
“The reason you don’t use the word torture is because it’s a crime, correct?” Ruiz asked.
“The reason I don’t use the word torture is because, in my training, that’s a judgment that has to be made by a judge in court,” Mitchell countered.
“Isn’t a reason you don’t use the word torture is because you feared criminal prosecution?” the lawyer asked.
Responded Mitchell: “No.”
