Front Burner - Guantanamo Bay, torture and the long road to a 9/11 trial

Episode Date: February 13, 2020

It's been almost 20 years since four jets were hijacked mid-air and crashed into the twin towers of the World Trade Centre in New York, the Pentagon in D.C., and a field near Shanksville, Penn., killing nearly 3,000 people. Pretrials have begun, and a full trial date for the surviving alleged plotters of the attack is set for January 2021, at Guantanamo Bay. But the legal case — and the logistics of holding it at the notorious U.S. military base — are complicated. Today on Front Burner, longtime national security reporter Michelle Shephard on the preparations for what could be the trial of the century.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Well, we were on our way to Guantanamo Bay and this was, like for me, this was maybe the 27th, 28th trip. I sort of stopped counting a while ago. This is Michelle Shepard, longtime national security reporter, filmmaker, occasional host of podcasts like this one. And there's a bit of a rigmarole that you go through to get there, all these forms you sign, but they always come through.

We were supposed to be talking to her today from Guantanamo Bay, the notorious U.S. military base on Cuban soil. But there was a bit of a last-minute change of plans. And we flew to Washington, and we were set to get on the plane the next day, and we got a note from the war court spokesperson that we only had clearance for two of the three security clearances that you need. So we couldn't get on the plane. And so after tons of reporting trips to Guantanamo Bay,

she was denied entry for the very first time. And it turns out it wasn't anything nefarious that we think. It was just sort of some bureaucratic inertia. And I was surprised. But then what really surprised me was that I was surprised. This is, you know, the strangest place on earth really and it's not unusual for things like this to happen. I'm Jamie Poisseau and today we're talking about the preparations underway for what could be the trial of the century, the January 2021 hearings for the five men accused of plotting the 9-11 attacks.

These are death penalty hearings and the many, many complications, both legal and logistical, of holding this trial at Guantanamo Bay. This is FrontBurner. This is FrontBurner. Okay, so we have these pre-trial hearings are underway right now, which you were hoping to attend, but you can't because you didn't get into Guantanamo. And maybe it will surprise some people. It actually surprised me to hear that there is this trial being planned at all because 9-11 happened so long ago. We're talking about almost 20 years ago now.

And so do you get a sense that this is on people's radars, that they know what's going on here? So, yeah, no, the reaction I get all the time is first, oh, is that place still open? And then if you talk about the trial, yeah, people are just gobsmacked. They're like, that hasn't happened yet. But in fact, it hasn't. And as you said, you know, next year is going to be the 20th anniversary of the 9-11 attacks. And that process in Guantanamo to try the five alleged masterminds of the attacks is limping forward.

masterminds of the attacks is limping forward. Okay, so before we talk about why it's limping forward, let's talk about the five alleged masterminds of the attack. So of course, Osama bin Laden is dead. He was killed in 2011. And on nights like this one, we can say to those families who have lost loved ones to Al Qaeda's terror, justice has been done. So who is actually left to stand trial here? So there's five, five accused that have been in custody since they were picked up in 2002 and 2003. And they were held at CIA black sites for a long period before they were transferred to Guantanamo in 2006, and they've been there since. Khalid Sheikh Mohammed is probably the most well-known one. He's been nicknamed KSM.

He's also allegedly al-Qaeda's third most senior operative after Osama bin Laden and Ayman al-Zahrawi. And he's the alleged mastermind of what they called sort of the planes operations, which was the 9-11 attack. There's also another detainee named Wali bin Atash. He's alleged to have trained two of the hijackers. There's Ammar al-Baluchi, who is KSM's nephew, Ramzi bin al-Shib, who he was alleged to have organized the Hamburg cell. There were students at the University of Technology. Atta is just one of many foreign students when he begins to plan the attacks. That was the cell in Germany of the hijackers who perhaps the most famous was Mohammed Atta. Atta studies town planning.

At the beginning, he was an interested young man who didn't look particularly different. He wasn't dressed conspicuously, just a normal jacket. And then Mustafa al-Hasawi, and he faces the least charges of the, or least allegations of the five, but he's accused of helping with the travel arrangements and finances. Okay, and I understand these charges come with the death sentence?

That's right. This is a capital case. Khalid Sheikh Mohammed was told that he could face the death penalty if he's convicted. He responded by saying that's exactly what he was wishing for. And they're being charged under something that's called the military commission. And that's a new law. And that's in part why it's taken so long to try and bring them to trial. It didn't exist before 9-11. The U.S. drafted it after. And it's a combination of sort of traditional military court-martials and a federal case.

OK, so you mentioned before that this has been limping along. And why has it taken so long to get to this point where we are right now? Well, part of the problem is that it's this new legal system that didn't exist before 9-11, as I said. And it was enacted in 2006. And then it was amended when Obama came into power in 2009. So a lot of the pre-trial litigation has just been arguing over the law itself, the trial itself. But the main point in this case is the issue of torture. And all five of these detainees were held in these so-called CIA black sites. And we know now what happened there to them. And the U.S. called it enhanced interrogation techniques, which I now feel comfortable, and I think everyone does, calling it torture. The five men on trial for allegedly planning the September 11th attacks

were all tortured by the CIA before they were moved to the prison at Guantanamo. Someone like Khalid Sheikh Mohammed was waterboarded 183 times in one of these facilities. This is not controlled drowning. It is drowning in the end. And we don't know the extent of what happened. There's actually a massive classified Senate report. I recently saw a movie about this, I think, with Adam Driver called The Report. They waterboarded him 183 times. Everything they got from him was either a lie or something they already had. If it works, why do you need to do it 183 times? Maybe when the report comes out, people will finally see that. It was an excellent movie. It was, you know how so often Hollywood takes

real stories and then they dramatize them to the point that it makes you cringe, and Zero Dark Thirty was one of those for me. Republican Senator John McCain criticized the film for suggesting that such methods were helpful in finding bin Laden. Torture does not work. It is hateful. It is harmful, incredibly harmful to the United States of America. The report is really excellent. And actually, I've spoken with the real life character who was played by Adam Driver, someone named Daniel Jones. And he agrees that it was very close to the truth. It's impactful. It's hard. It's hard to watch. Right. In the sense for me, I was so closely connected to it over seven years. So yes, it's that's the that's what I'm talking about that Senate report. Okay. Of which I think the report is close to 7000 pages. And only 500 pages have

been declassified. And what's in those 500 pages is is pretty harrowing. So the defense lawyers for these five are arguing that anything that their clients said cannot be admissible in court because it was gleaned under torture. And what the prosecution is trying to do is that they're not taking into court what they said in these CIA sites. But once these five were transferred to Guantanamo, the FBI sent in what they call clean teams. And they did interrogations in 2007 that obviously didn't have the torturous methods that the CIA used. And so they're arguing, well, we can use what the detainees said at this point. But the defense lawyers are saying, no, once you torture somebody, the detainees at that point are conditioned to say what you want to hear. And therefore, anything they've said is admissible.

So basically, they're having a pretrial now to decide if this evidence, essentially confessions, are admissible. But it's possible that none of this stuff will be admissible in a trial? That's possible. I mean, there's multiple motions looking at various different aspects, and the lawyers are actually still trying to fight for more information, too. Part of the litigation is how much the prosecution is giving them. So much of this, so much of the information in this trial is in various stages of classification. And I know sometimes when you talk with the defense lawyers, they're privy to some information that they then can't say public.

And for them, it's really difficult to talk because they have to keep very clear what they know that can be said publicly and what can't be. I understand one of the architects of the CIA's torture program took the stand. Sasha Pfeiffer of NPR's investigations team has been covering the trial. You know, he described some torture techniques in a fair amount of detail, like putting a broomstick behind someone's knees and pushing them backward until their shoulders were touching the floor and their knees were at risk of getting dislocated. It must have been a bit surreal for all these guys to have been in the same courtroom together.

Yeah, I wasn't there for that testimony, but it sounded incredibly dramatic. Carol Rosenberg is one of the most amazing journalists, and the only journalist who covers this doggedly and doesn't miss a hearing. And her description of what happened was that this contractor, basically a psychologist who brought these torture techniques to the CIA, one of two, and he was paid quite handsomely for that, took the stand to talk about it. And he's in the courtroom taking the stand not far from Khalid Sheikh Mohammed,

who he personally helped waterboard 183 times. And from what I read of the transcripts and the news reports of that testimony, he defended his methods still. And he was quite defiant in that he said he felt he was doing his patriotic duty. Is it fair for me to say that it seems like the case is already extremely legally difficult? That is very fair to say. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections.

I understand, too, on top of these legal issues, there are also a whole whack of logistical ones, which might help explain why you couldn't get into Guantanamo this week. It's just a really small example of the massive logistical challenges that that place faces. And, you know, right now the trial is set to begin in January 2021. And most people say that's wildly optimistic. And in fact, even just this week for the hearing that we're supposed to be down there for, it's been delayed because one of the defense lawyers has asked to come off the case. And it's because he's not well. He's been on the case for a long time. He's 75 years old. He has health issues. And if he goes off that case,

he's what they refer to as a learned counsel. And it means somebody who has experience with death penalty cases. If he goes off that case, that could delay the trial by many, many more weeks, possibly months, because that defendant is entitled to someone who knows how to litigate these cases.

That's one small issue. The other is just getting back and forth between Guantanamo. Every time there is a hearing, planes have to leave, you know, with everybody who's involved with the trial. When you get there, for journalists, for example, when we're there, we're housed in tents on a tarmac. And I remember being there for the arraignment of these five in May 2012. And that was a really big media pool. It was probably about 60 of us. And I imagine if the trial goes forward, it could be even bigger than that. And that was difficult for the military to be able to pull off.

Every journalist down there has to be escorted. be able to pull off. Every journalist down there has to be escorted. I mean, there was one point that if you wanted to go for a jog, they would insist that someone had to come along. Journalists are just one side of it. There's like some guy running after you just to supervise you? We managed to fight that one down, but that was the proposal. The other issue is the relatives of 9-11 victims have been coming down to watch the hearings. There's a select pool that comes down each time.

And right now, I mean, there's no way that you could bring more than a handful of relatives down to see that. So there's some suggestion that perhaps there will be viewing sites. Right now, you already can view the proceedings in Fort Meade, Maryland. There'll be other viewing sites where relatives can watch it. But you can imagine for some of these families 20 years later, they still haven't had a day in court and they would want to be part of that process. Right. I understand the names of nearly 3,000 people are on this charge sheet, all the people killed in 9-11. So we're talking about, you know, many, many family members. And then I would also imagine people who were affected,

first responders, people who have died of health issues. Later on, we're talking about a lot of people who might want to attend this trial. If there are all of these logistical concerns, why is this even being held at Guantanamo? I also thought President Barack Obama was supposed to be shutting this place down. Well, that's right. And I was actually in Guantanamo when he was inaugurated and signed the declaration that he would close Guantanamo in a year. We then provide the process whereby Guantanamo will be closed no later than one year from now. And soon after said he would try the five detainees in a Manhattan

courtroom. And that eventually received such public backlash that he pulled back on that. And, you know, it's interesting because Congress soon after enacted legislation that made it impossible for Guantanamo detainees to be tried on American soil, just because the US military wasn't able to spend money that could bring them there. But many would say that, you know, it was really Obama who dropped the ball. And it was a political decision after coming, you know, out of the gate who dropped the ball. And it was a political decision after coming, you know, out of the gate saying that I'm closing the CIA black sites, I'm closing Guantanamo and trials are going to happen on American soil. And then as soon as, you know, that wasn't really

the biggest priority early on in his presidency. And once that ball was dropped, the momentum was impossible to get back. Realistically, Michelle, how are they going to pull this off, this trial that carries such enormous significance? You know, I don't know. I will be absolutely amazed if it is completed next year on the 20th anniversary. I'll be amazed if it gets started next year. It just feels like the legal complications and the logistical hurdles really are too great to get it underway. What do you think it will mean for the families of the victims of 9-11 if this case continues to be drawn out and delayed?

You know, I've talked to a lot of them over the years, those who have come down to Guantanamo and watched the proceedings and, of course, in other stories. And you can't say that the families and the loved ones of 2,976 victims obviously don't speak with one voice. So I've heard a whole variety of responses. For some, they're devastated that this hasn't happened. For others, they're just happy that they're held indefinitely. And for them, that's a sense of justice.

So, you know, I think my own opinion really is I think it is a dark mark in history, though, if you think that these are the equivalent of the Nuremberg trials of our time and that, you know, one of the most devastating terrorist attacks that we know happened. And still 20 years later, nearly 20 years later, there isn't a trial. That to me really seems like a shame. Okay. Michelle Shepard, thank you so much. Thank you. So after the interview, I asked Michelle one more question. We had just heard the news that reporter and National Post columnist Christy Blatchford had died of cancer at the age of 68. I'd been in many a courtroom with her. She was a force in the court, also a pioneer for women in this industry. But I didn't know her as well as Michelle did.

And so here's what Michelle had to say. Yeah, I think I first met Christy back way back during the Bernardo trial. And that was a devastating trial for a lot of them to cover. And I remember she kind of frightened me. She was very intimidating. She was a very intimidating journalist. Very intimidating. But over the years, I did get to know her. And she had a real soft side, too.

And we agreed to disagree on a lot. But Christy was one of the hardest working journalists I know. And she could be really, really kind to journalists coming up the ranks. And it was shocking news. You know, she was just diagnosed in November and cancer took her really quickly. That's all for today. I'm Jamie Poisson. Thanks so much for listening to FrontBurner and talk to you tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts.