Lost witnesses and faded memories hinder progress in the September 11 case

Four years ago, an American psychologist described in open court how he had threatened to slit the throat of a young son of Khalid Shaikh Mohammed, the accused mastermind of the September 11 attacks, if another Qaeda attack claimed the life of an American child.

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

Dr. Mitchell later acknowledged that he had forgotten his threat. But the episode underlines a new challenge for the military court in the case against four detainees accused of conspiring in the attacks that killed nearly 3,000 people on September 11, 2001: the fading memories and unavailability of witnesses whose testimony is crucial is important for obtaining evidence. the death penalty case was brought to trial.

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

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

One witness was the defendants’ first psychiatrist at Guantánamo. The other was their first prison commander. A third key witness from that period, the first doctor treating the detainees at Guantánamo, died in 2018 before his testimony could be obtained.

In November, Jacqueline Maguirea senior FBI official, said 199 times that she did not remember specific information from that time. As a first-year special agent, she led the investigation into the five hijackers who piloted the plane that crashed into the Pentagon.

It was easy enough to get Dr. Mitchell to remember. Mr. Mohammed’s lawyer showed him page 31,362 of the pre-trial hearing transcript containing his testimony from January 2020. In it, Dr. Mitchell explains that he consulted a CIA lawyer during the time he was waterboarding Mr. Mohammed and was told to make the threat to kill his prisoner’s son conditional.

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

Failed memories increasingly play a role in the pretrial phase, which began with the arraignment in 2012. Rather than attempt to immediately bring the accused plotters of the September 11 attacks to justice, the administration of George W. Bush brutally interrogated them in 2002 and 2003 to try to figure out more attacks were planned — and then held them incommunicado for years at so-called black sites, a circuitous route the details of which remain secret.

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

One potential witness, the CIA’s lead interrogator in the black site prison network, died before the men were charged. In 2003, the officer had medical officers ‘rectally rehydrate’ Mr Mohammed after he had refused to drink some water during an interrogation. Medical experts have discredited the procedure; Defense lawyers call it rape.

Col. Matthew N. McCallThe judge appears to be about to rule on whether all that anonymity and hampered access to CIA witnesses is an obstacle to a fair trial. But Colonel McCall is retiring later this year. He may have to leave that question to the next judge, who will be the fifth to preside over the case at Guantánamo Bay.

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

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

Last week, a retired FBI agent, James Fitzsimmons, needed headphones to hear lawyers standing just feet away from him in court. He appeared to have misunderstood a question from a military lawyer, saying he was unaware of a CIA program that secretly used FBI agents to interrogate suspects at the black sites.

This week, Clayton G. Trivett Jr., a September 11 prosecutor, made a rare correction to the dossier by announcing that Mr. Fitzsimmons had actually been assigned to the program and was working for the CIA as an interrogator at the agency’s black site . at Guantánamo, which opened in 2003 and closed in 2004. It was the first public identification of an FBI agent who participated in the program.

The memory played a major role in Dr.’s testimony this week. Mitchell, when prosecutors tried to bolster their argument that the suspects had voluntarily incriminated themselves.

In a lengthy testimony he explained the psychological theory of “fear of extinction‘ and his assessment of how this applied to Mr. Mohammed: Yes, waterboarding and other violent “enhanced interrogation techniques” were used on Mr. Mohammed during his first month in the CIA’s prison network. But, said Dr. Mitchell, the prisoner was subsequently interrogated more than a thousand times during the next three years in detention and regained his sense of control over his actions and consequences, abandoning his CIA conditioning – because the violence was not repeated.

Health concerns have also hampered progress during the pandemic. On Thursday, the judge postponed more of Dr. Mitchell’s testimony that was scheduled to take place this weekend because one of the death penalty defense attorneys, whose attendance at the court is required, had tested positive for the coronavirus at Guantanamo Bay.