15 years of pretrial hearings for Guantanamo detainees

Prosecutors portrayed the prisoners as unrepentant jihadists who bragged about their roles in the Sept. 11, 2001, attacks to federal agents during their first months in military detention at Guantánamo Bay, reported The New York Times.

Defense lawyers cast the men as so broken by violence and solitary confinement in their years in C.I.A. prisons overseas that they were groomed to involuntarily confess to U.S. agents.

Over eight days this month, the two sides offered these stark, clashing views to a military judge who is now confronted with the overarching question in the long-running capital case: Did Khalid Shaikh Mohammed, who is accused of hatching and organizing the Sept. 11 attacks, and two co-defendants voluntarily incriminate themselves to F.B.I. agents years ago, and can their statements be used against them?

The case is in its 15th year of these pretrial proceedings, and no date has been set for the trial to begin. But the judge’s decision could be a turning point almost 25 years after the attacks killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon.

Stephan Gerhardt, whose brother Ralph was killed in the attack on the World Trade Center, said the judge’s decision would provide “a major step forward as it answers probably the biggest legal question that needs resolution before a trial date being set.”

He watched some of the arguments in the court at Guantánamo this month.

The legal question before the judge is not about the crime itself, the largest terrorist attack ever in the United States. That will be left for a trial.

It is whether the prisoners were so thoroughly conditioned after more than three years of incommunicado detention, which started off with brutality and continued with years of questioning by U.S. government agents, that they involuntarily told their captors what they wanted to hear.

A crux of the question confronting the judge is the legal principle of attenuation, how to get an untainted confession after a coerced one. Prosecutors say the “clean” interrogations at Guantánamo in 2007 met the legal standard of a change in time, change in place and change in identity of questioners.

Transfer to Guantánamo

To make his decision, the judge is reviewing years of testimony and reams of classified evidence managed by four previous judges in the case against Mr. Mohammed, Walid bin Attash and Mustafa al-Hawsawi to decide whether there was a clear moment of attenuation.

Or, as the judge called it, the pivot.

Military judges have so far thrown out the confessions of two other capital defendants, Ammar al-Baluchi and Abd al-Rahim al-Nashiri, because of what the C.I.A. did to them. Prosecutors are appealing to reinstate Mr. Baluchi’s statements.

“Mr. Khalid Shaikh Mohammed could not shut up about his role as the emir of the 9/11 attacks,” the lead prosecutor, Clayton G. Trivett Jr., said on the first day of the hearing. Mr. Trivett said Mr. Mohammed boasted about the attacks to C.I.A. interrogators after he was captured in Pakistan in March 2003 and then to F.B.I. agents at Guantánamo in January 2007.

It was in March 2003 when Mr. Mohammed was in C.I.A. custody that he was waterboarded 183 times. His lawyer, Gary D. Sowards, said that after his client was tortured, he was questioned hundreds of times, sometimes three times a day, by C.I.A. investigators.

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