Torture report could play a role in Khalid Shaikh Mohammed's defense

Posted at 5:28 PM, Dec 11, 2014

The Senate Intelligence Committee’s torture report could be a key asset of the defense team representing Khalid Shaikh Mohammed, the self-described mastermind of the 9/11 attacks.

The committee’s 525-page report documents the details of Mohammed’s intense interrogation, and one of his lawyers suggests it might mean many of his statements should not be admissible when he is finally tried, which is expected in 2015.

“What we’ve been told up until now in a declassified setting is that Mr. Mohammed was water boarded 183 times in the month of March 2003,” said David Nevin, one of the defense lawyers for Mohammed. “And that’s a surprising, shocking fact. But when you see the descriptions that are contained in that report, of what that water boarding looked like, the descriptions of him with his belly descended, with water pouring out of his mouth because no more water would go in, and the vomiting… you just see that it has a much more powerful impact.”

Nevin added, “Some of Mr. Mohammed’s statements will have been coerced by torture, and we are entitled to know all of the details about how that coercion took place and file appropriate motions to suppress if we think it’s appropriate, it’s supported by the law.”

The report also has produced at least two concrete witnesses, Nevin said.

Two psychologists were repeatedly mentioned in the report as being involved in overseeing, and at times carrying out, the torture. They were not named in the report, but recent media reports have identified the two as Jim Mitchell and Bruce Jessen, and Nevin hopes to bring them to Guantanamo Bay to testify.

“I don’t want to put out a report written that says Mr. X poured water on Mr. Mohammed. I want to interview Mr. X. I want to put him on the witness stand,” Nevin said. “And I want to ask him ‘What did you do? What did you do that’s not written in a report? Why did you do it? Who told you to do it? Where were you? What else did you do?’ I want to ask all of those things.”

He says determining who was there during the coercion practices and then bringing them to testify at Guantanamo Bay during Mohammed’s trial could greatly help his case.

“[T]hose people are certainly people that I want to talk to and am entitled to talk to and to bring as witnesses if appropriate,” he said. “The impact of personal observation testimony is just much greater than that of a cold black ink on white paper description. You can’t cross examine a piece of paper.”

Although it is still unknown what the prosecution will bring against Mohammed — the proceeding are still in the pre-trial motion phase — there are those who are skeptical about whether the torture reports will matter.

“None of his statements made while undergoing coercive interrogations will be entered into evidence at trial. Prosecutors have maintained that position since the initial arraignment in June 2008,” said J.D. Gordon, former Pentagon Spokesperson under George W. Bush. “There is ample evidence to convict KSM (Mohammed) without using any statements made during coercive interrogations.”

Nevertheless, Nevin believes cross-examining any of those involved in the torture, potentially including the psychologists, can only help Mohammed.

“If Mr. Mohammed is found guilty of a capital offense, then there is a penalty phase,” Nevin said. “And the fact that he has been tortured at the hands of the U.S. government bears directly on what sentence should be imposed on him.”

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