JURIST Guest Columnist B. Shaw Drake, Georgetown University Law Center, Class of 2015, discusses how the use of torture may be counterproductive to American military efforts…As a Case Management Coordinator at the Bellevue/NYU Program for Survivors of Torture, I have seen first-hand the devastating impact of torture. My former clients from over 80 countries experienced the worst in humanity: treatment that broke down the contract to which we all prescribe as human beings, turning my clients into non-humans—enemies of the state—justifying their ill-treatment. Whether considered through a legal, religious or moral lens, most can agree that torture is never permissible and is abhorrent to the very foundation of mankind. However, a more complicated question persists: can the torturer fairly prosecute the tortured?

Numerous issues are playing out in the pre-trial hearing stage before Judge Col. James Pohl. Issues concerning violations of attorney-client privilege, an FBI investigation and female guards assigned to transport detainees continue to delay the 9/11 case. After a cost of $90,000 each way, to fly observers, media, linguists, prosecution and defense teams to Guantanamo Bay, the scheduled December hearings were canceled. Consistent estimates among defense counsel and other officials put the beginning of the actual trial well into 2018, some 17 years after the occurrence of the charged crimes. While the adage that “justice delayed is justice denied” may ring true for victims’ families, torture will likely pose the greatest barrier to legitimate justice in the case of the 9/11 five.

Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak bin Attash, Ramzi bin al Shaibah, Ammar al-Baluchi and Mustafa Ahmed Adam al-Hawsawi have been charged with crimes relating to 9/11, for which they could be sentenced to death. The Executive Summary of the Senate Intelligence Committee’s Torture Report details gruesome torture suffered by these defendants. Several were forced to stay awake for days, standing for most of the time, including Walid bin Attash, who has one leg and was hung from his wrists for hours. Alleged 9/11 mastermind Khalid Sheikh Mohammed was water boarded so many times he began to signal interrogators during the water boarding, showing he knew exactly how long the torture should last. Other deeply disturbing treatment included “rectal rehydration,” suffered by both Mohammed and Mustafa al-Hawsawi, who now sits on a pillow in court due to “an anal fissure and symptomatic rectal prolapse” resulting from his past torture. Defense counsel James Harrington, representing Ramzi bin al Shaibah, strongly asserts that the Executive Summary of the Torture Report is just the “tip of the iceberg.” Cheryl Bormann, representing Walid bin Attash, is barred by classification rules from revealing all that was done to her client during his years in secret prisons, but also suggests that the released summary of the Torture Report only scratches the surface.

These and other defense counsel have strongly questioned the legitimacy of the Military Commission from the beginning but remain involved to defend the principles of the US Constitution they believe should be provided, even to alleged 9/11 masterminds. The revelations of extensive torture further tests the legitimacy of the proceedings and provides the defense with further support for challenges they expect to go all the way to the Supreme Court.

The 9/11 five trial is poised for months or even years of legal battles over the disclosure, value and credibility of evidence received from defendants who were subject to years of unspeakable torture. Ultimately a panel of high-ranking military service members, the equivalent of a civilian jury, will have to decide whether guilt beyond a reasonable doubt and administration of the death penalty can be carried out in a case likely to rely to some extent on information obtained through torture.

Chief Prosecutor General Martins has stated he will put on a case against the 9/11 five without using any classified information. General Martins also asserts that no statements assessed to be involuntarily will be used, as prohibited by the Military Commissions Act of 2009. Martins also argues the release of information in the Senate’s Torture Report will further accelerate the ability of the prosecution to turn over previously classified information to the defense regarding the Rendition, Detention and Interrogation (RDI) Program. It remains to be seen what evidence will be presented against each of the five defendants. Defense counsel argues that the government lacks independent and credibly obtained evidence and that a trial can simply not be fairly carried out against the tortured by the torturers.

The 9/11 trial is charting new ground. Nuremburg was about prosecuting torturers for crimes against humanity; not prosecuting the tortured. These new circumstances raise questions poised to reach the Supreme Court. What remedy is appropriate for torture carried out against the 9/11 five? Can evidence obtained during or following torture be admitted in the Military Commission system? As many call for indictments against those responsible for the governments torture program, the question of legitimate justice for 9/11 may be a more likely consequence for State-sanctioned torture.

A recent article by a 9/11 victim family member argued that the Senate Intelligence Committee’s Torture Report inappropriately turned “the enemies into victims,” betraying the true victims of 9/11. I would however assert that admitting and dealing with the fact that the alleged 9/11 conspirators were victims of State-sanctioned torture does not detract from the tragedy suffered by those on 9/11. In seeking justice for 9/11 through the current Military Commission, the questions of defining the defendants as victims of torture is likely less legally significant as the difficult legal questions surrounding the use of torture induced evidence.

In my opinion, our government undermined the “war on terror” the moment when it abandoned American values and justified the use of torture against our enemies. Now, faced with seeking justice for the families of the most appalling act of violence ever carried out on American soil, our nation is faced with the consequences of its actions. In the end, the trial against the 9/11 five may be less about guilt or innocence or life or death and more about the repulsive reality of the actions of our nation in its darkest hour.

B. Shaw Drake is a third-year student at Georgetown University Law Center. He has a B.A. in Latin American Studies and Romance Languages from The University of North Carolina at Chapel Hill. He also has an Advanced Graduate Certificate in Immigration Law from The City University of New York.

Suggested Citation: B. Shaw Drake, Unknown Impact of Torture on 9/11 Justice, JURIST – Student Commentary, Jan. 14, 2015, http://jurist.org/student/2015/01/shaw-drake-torture-impact.php.