(CN) — In the long-delayed prosecution of accused 9/11 bombers, a military judge threw out the statements Friday that Khalid Shaikh Mohammed and four others made to the FBI after they were tortured in CIA custody.
Clocking in at 36 pages, the ruling by Army Colonel James Pohl at Guantanamo Bay agrees with defense attorneys that all five statements given to a so-called “clean team” at the FBI could have been tainted because they happened after the CIA interrogated the men in overseas black sites.
Including self-proclaimed 9/11 mastermind KSM, each of the detainees have been charged under the military commission system with attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, terrorism, and providing material support for terrorism. Additionally, the charges include 2,973 counts of murder — one for each person killed in the 9/11 attacks.
In order to impose the death penalty, however, the government requires the unanimous agreement of the commission judges. Human rights groups like Amnesty International and Human Rights Watch have previously criticized the military commissions for lacking necessary rights for a fair trial, arguing for a trial either in a federal district or by court-martial under the Geneva Conventions.
Attorneys for the detainees have said that evidence about their clients’ treatment in CIA custody is necessary to have a fair death-penalty trial. Thus far, the government has restricted their ability to speak to potential witnesses, however, saying that it is a national security imperative to keep the identities of CIA personnel secret.
Prosecutors have offered summaries of what guards and doctors had seen and done at the CIA sites, but Pohl said Friday that the summaries were not an adequate substitute for investigation.
Pohl found that the summaries will not provide the defense with “substantially the same ability to investigate, prepare and litigate motions to suppress the FBI clean team statements,” since the government restrictions limit any chance defense lawyers may have to produce a rich account of the three-year to four-year period of time the detainees spent in CIA custody.
The judge also upheld the limitations the government imposed on the defense lawyers’ ability to investigate the CIA, and suppressed the detainee’s statements to the FBI as evidence.