Lawyers Press Case That 9/11 Confessions Given to F.B.I. Are Tainted

Last summer, the first trial judge, Col. James L. Pohl, forbade the use of the F.B.I. interrogations at Guantánamo Bay, then retired from the Army. Another prosecutor on the case, Jeffrey D. Groharing, called the 2007 F.B.I. interrogations “the most critical evidence in this case” and persuaded an interim judge, Col. Keith A. Parrella of the Marines, to reinstate them.

Now the new judge, who took over the case in June, plans to consider again whether each of the five defendants’ F.B.I. interrogations should be admissible. Hearings on the question could start in September and run until March 2020.

First, however, the judge must decide the delicate question of how much testimony to take from former black site workers, including agents and contractors whose identities the C.I.A. is shielding by invoking a national security privilege. The defendants want the judge to hold an exhaustive hearing on what went on in the C.I.A. prison network between 2002 and 2006 as a basis for deciding whether the clean-team statements are admissible.

In June, James Harrington, a lawyer representing one of Mr. Mohammed’s co-defendants, scolded Colonel Cohen at the judge’s first hearing for referring to the F.B.I. interrogations as “cleansing” statements.

“Right now before the court I believe is an issue of voluntariness with respect to those statements,” he said.

Mr. Harrington offered a longstanding defense argument that anything Mr. Mohammed and the other suspects said at Guantánamo was essentially “a Pavlovian response” drilled into the defendants in their three and four years of torture at the black sites, where the lawyers contend that calculated abuse trained the defendants to later tell the F.B.I. agents what the C.I.A. had forced them to say.

That was the general defense approach until December 2017, when defense lawyers started seeing both classified and unclassified evidence they say demonstrates that the United States government was engaged in “one continuous course of conduct to obtain statements by torture and other cruel and inhuman, degrading treatment, including incommunicado detention,” according to James G. Connell III, a lawyer representing another defendant, Mr. Mohammed’s nephew, Ammar al-Baluchi.

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