On Tuesday, Gina Haspel was named as Donald Trump’s pick to be the new director of the Central Intelligence Agency. The news was notable for a number of reasons, not the least of which was Haspel’s role in overseeing the torture of two terrorism suspects in 2002 and subsequent role in ordering the destruction of evidence documenting that torture. Haspel’s elevation offers a reminder of the dramatic lengths to which the government has gone to cover up details of its torture program. Evidence of the extent of that coverup has been on full display in recent weeks during the latest pretrial hearings for the five men accused of plotting the 9/11 attacks.
A debate over which individuals and which former CIA black sites are off-limits to the defense teams—all of whom have top-secret security clearance—has resurrected a seemingly absurd argument that’s haunted the case from the beginning: Can the memories of a defendant about what the government has done to him be considered “classified?” The government is willing to test that premise in order to protect the details of a program that the new CIA director readily destroyed evidence of in the past.
At the end of last year, a notice brought to court by U.S. government prosecutors severely limited who the defense could interview regarding their clients’ torture and restricted independent investigations of alleged black sites overseas. Paired with long-standing restrictions on what they could ask their clients about their torture, this effectively paralyzed the defense. The dispute came to a head during combative proceedings on March 1, which happened to coincide with the 15th anniversary of the arrest of two of the accused.
By the end the series of hearings between Feb. 26 to March 2, the prosecution’s guidance was rewritten to explicitly prohibit the defense from interviewing only those CIA affiliates directly involved in the notorious Rendition, Detention, Interrogation program. The surrounding arguments, however, opened up a Pandora’s box of uncertainty and anger for defense teams who have been fighting for six years to gain access to details of their clients’ torture that they believe to be essential to the case.
“Torture information is privileged over other classified information, other national security secrets that the United States needs to protect,” James Connell III, lead counsel for accused Ammar al-Baluchi, said in a meeting with the press the day after the explosive March 1 hearing. “It’s only torture that gets special treatment, which I think says a lot about the priorities of the United States government.”
According to Connell and his team, the government has gone to Orwellian lengths to blur, hide, and obfuscate any and all information regarding torture.
In 2012, Army judge Col. James Pohl issued an order that protected all “verbal or non-documentary classified information known to an accused.” He defined “information” to include all “observations and experiences of an accused” related to the RDI program. Effectively, the order barred defense attorneys from asking their clients any details about the years of their lives spent in secret CIA custody.
Over the years, the Black Mirror–like provision was challenged by the defense and altered by the prosecution. But the government continued to impose other restrictions, keeping them purposefully vague. In 2013, it was found that the government had planted covert listening devices into smoke detectors in the cells where the defense attorneys met with their clients. One odd speed bump after another has stretched this pretrial across six years, with little progress.
“This is the beauty from the government’s position of having all this stuff be vague and uncertain and incomplete,” said David Nevin, the Boise-based lead counsel for Khalid Sheikh Mohammed.
According to Nevin, the government’s mercurial rules regarding what kinds of investigations are allowed makes it virtually impossible for the defense to interview witnesses or investigate the details of the RDI program that they believe could influence their clients’ fates. In the six years that the case has been in slow-moving pretrial, dozens of investigation inhibiting restrictions have been issued by the government and subsequently challenged by the defense. During the most recent round of hearings, Nevin actually protested the prohibition on interviewing CIA witnesses by refusing to argue for most of the week. He claimed that the conflict of interest the prohibition placed on his team made it impossible for them to participate in the proceedings in earnest.
There is no statute or case law that sets a precedent for treating prisoner memories as classified. Beyond a blatant lack of legal precedent, the concept of classifying a detainee’s memories presents several complex implications.
“The government treats our clients’ statements to us as classified based on the fiction that they own our clients or that they control our clients,” Nevin said.
For Connell, an experienced death penalty defense attorney, the idea threatens to create an entirely new genre of cruel and unusual punishment.
“To classify something, the government must own it,” Connell explained, “Treating prisoner memories as classified is a claim that the government controls not only prisoner bodies but their minds as well.” According to Connell, in a situation tainted by torture, “the truth becomes whatever the torturer says it is.”
In addition to restricting investigations and putting a veritable gag order on the accused, the comparatively few documents that the prosecution has recently released contained blurred dates and several swaths of reports entirely omitted. This makes it impossible for the defense to know if an allegedly incriminating statement was made by the client right after they’d been tortured, or if a detail was planted by an interrogator. Even the subtlest of these details can change the whole narrative.
“Everything turns on whether or not what our clients tell us is classified,” Nevin said. “There is no way to piece together what actually happened in a fine grained way.”
In and out of court, the members of the defense are not reticent to voice their belief that the Guantanamo Bay Military Commissions, the war crimes court in which the suspected terrorists are tried, is fundamentally illegitimate.
“This whole system is riddled top to bottom with these kinds of trap doors” Nevin said.
Transcripts for military commissions hearings are usually released within a day, but the March 1 transcripts are still nowhere to be found. Judging from the convoluted back-and-forth in court earlier this month, it’s no surprise. No one involved seems to be able to confidently say what was actually decided.
“Serious penalties hang on interpreting these things incorrectly,” Nevin said. The government’s restrictions, no matter how ambiguous, put the defense at risk of criminal prosecution if they overstep.
“You’re fulfilling a constitutional obligation with this sword hanging over your head, and they’re very careful to remind us frequently and repeatedly that that sword is there,” Nevin added. “That has a chilling effect on a person’s ability to conduct an investigation.”
Six years since the pretrial hearings began, and more than 15 since the accused were arrested, Connell believes that the issue of classifying human memories of one’s experience in custody is still far from resolution.
No trial date has been set for the 9/11 case.
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