By Judge Andrew P. Napolitano
America’s longest current criminal prosecution is in its 15th year, on its fifth judge, and still has no trial date.
The defendants are Khalid Shaikh Mohammed and four alleged mass murder co-conspirators. Mohammed is the second person that the government has characterized as the ringleader of the attacks on Sept. 11, 2001. Originally, the feds had labeled Osama bin Laden as the ringleader. Yet, rather than charging and arresting bin Laden, in order to keep him quiet it sent a team of Navy Seals to his home in Pakistan to murder him and his wife and their children.
After that, the feds labeled Mohammed as the orchestrator of 9/11 even though that, by the time of bin Laden’s death, Mohammed had been in U.S. custody for eight years. During that time, he was brutally tortured by CIA officers and other U.S. civilian agents.
His torture was truly repellant. He was waterboarded 183 times. He was hanged by his wrists while naked and in well-lit walk-in refrigerators such that he was freezing and denied sleep for days. His head was smashed repeatedly against wooden walls. His rectum, through which he was fed, was so brutalized that he bled for months, often ingesting into his intestines his own blood and fecal material.
At the end of three years of these criminal attacks at foreign sites operated by cooperating intelligence agencies with the torture administered by Americans, he told his torturers what he thought they wanted to hear. Then he was transferred to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained since 2007.
Upon his arrival at Gitmo, a different set of interrogators took over. The video tapes of his hundreds of torture sessions were destroyed but not the transcripts of his confession. The purpose of the second round of interrogations was to elicit another confession by agents who could testify to a judge that they did not torture him, and that his confession to them was not coerced.
Though some of these interrogators at Gitmo were FBI agents, no one read him his Miranda warnings, advising him of his right to silence, to counsel and to the legal implications of anything he told his new interrogators. Mohammed made admissions to this second group of interrogators substantially similar to those he made to his torturers.
The government, which once denied but now admits to the torture, nevertheless was prepared to argue that his second confession was voluntary. Then, the feds had a change of heart. And, two years ago, his lawyers entered into plea negotiations, at the request of the government because the military lawyers and their Department of Justice legal colleagues concluded that they could not ethically defend torture in an American courtroom.
Federal law, the federal rules of criminal procedure, the canons of legal ethics and state bar licensing authorities all prohibit lawyers from using coerced testimony in a courtroom.
The government and all defense lawyers entered into a plea agreement that provided for full public confessions, a public confrontation by family members of 9/11 victims during which the defendants agreed to reply truthfully to their questions, and, of course, life in prison at Gitmo.
The Army general in the Pentagon in charge of all Gitmo prosecutions — herself a former military judge — approved the plea agreement, as did the military trial judge, and all five defendants.
Then, the Biden administration Defense Secretary Lloyd Austin fired the general who approved the plea agreement and revoked the Pentagon’s approval. A federal appeals court upheld his revocation. At that point, Mohammed was on his fourth military judge and his fifth team of prosecutors.
After the court affirmed the Pentagon’s change of heart, the military judge who had approved the plea agreement retired. The current and fifth judge has presumably read the 44,000 pages of documents and transcripts that 15 years of litigation has generated as he announced last week that he will rule on the admissibility of the second round of confessions this summer.
The present judge, who did not preside over any of the hundreds of hours of proceedings in the case, including those during which the horrific tortures described above were related in an American courtroom, must now decide if the second confession was voluntary. Though the government now admits that the first confession was not voluntary, its relevance here is not the words Mohammed told his torturers but the degradation of his mental faculties due to the egregious tortures such that the second confession was also not voluntary.
Was Mohammed so conditioned to the power of his interrogators that his will was attenuated?
The standard of proof that the government must meet to get the second confession admitted is voluntariness beyond a reasonable doubt and to a moral certainty. That’s the same high standard for proving guilt in all American courts. If the feds fail to meet this standard to the satisfaction of the judge, the case will proceed to trial without the jury hearing the confession.
This is a two-edged sword for the government. If the confession is read to the jury, then the defendants and their experts can relate to the jury all the horrific things the government did in order to produce the confessions. But if the confession does not come into evidence, then the jury will not hear of the tortures unless there is a conviction and the torture testimony is presented in mitigation of punishment.
What we have here is a lawless system of brutality. Torture and all it produces is a profound violation of natural rights, the Constitution’s guarantee of due process, as well as federal law. Even practitioners of this medieval behavior have acknowledged it produces unreliable statements. It is the tool of monsters.
On the eve of America’s 250th anniversary, we are asked to accept government at its worst; one that the Framers thought they had prohibited and one to which the governed never consented.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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