This month marks the twenty-fifth anniversary of the 9/11 attacks. The attacks are history for many, if not most, of the law students we teach. Instead, they count their experience with COVID as the signal event of their young lives. Indeed, while it would have been hard to imagine a quarter-century ago, many Americans and political leaders would no longer name foreign terrorist attacks as the most worrisome threat. Terrorism has been supplanted by pandemic fears, the tangible consequences of global climate change, the manifold effects of the wars of choice by Russia in Ukraine and the United States in Iran, the potential threats posed by rogue AI, and by the general economic upheaval and uncertainty that seems to pervade the world.
Therefore, it is little surprise that the late August decision by the military judge presiding over the case against Khalid Shaikh Mohammed, the mastermind behind the 9/11 attacks, attracted relatively little attention. The judge concluded that Mohammed’s 2007 confessions to FBI agents cannot be used against him in the case, because they were obtained through the use of “enhanced interrogation techniques”—in other words, torture. Prosecutors in the case had already decided to exclude statements Mohammed made when interrogated overseas by the CIA; now, the court concluded, the confessions he made during interrogations after his transfer to Guantanamo in 2006 are also inadmissible. As reported in the New York Times, the judge’s conclusion was simple: the government had not carried its burden of demonstrating that Mohammed’s confessions were voluntary. In support of his decision, the judge pointed to several factors, among them an “unbroken continuation of the C.I.A.’s psychological conditioning and severe coercion” when F.B.I. agents questioned Mohammed at Guantánamo in 2007.
As troubling as these interrogations are, both factually and legally, the judge’s conclusion should not be a surprise: torture is not permitted in any civilized system of justice, and confessions obtained through torture are both morally repugnant and of little factual credibility. Although the details of what techniques the CIA used on Mohammed and the other September 11 detainees have not been disclosed, we know they included waterboarding. Mohammed, the military court noted in its recent decision, was subject to more than 160 rounds of waterboarding. The decision to use such “enhanced interrogation techniques” has cast a very long shadow of doubt over the efforts to hold Mohammed and the other September 11 plotters legally accountable for their actions.
At every step of the military tribunal proceedings, the decision to torture the defendants has produced specific and needless costs. First, of course, there is the reputational cost—the national shame associated with the fact that these individuals were subject to torture at all. By resorting to torture, the United States now ranks with such countries as Syria (even after Assad), North Korea, and Iran—none a model of ethical constraint or democratic accountability.
Second, there is the cost in terms of time and resources. As we have explained elsewhere, the military commissions process was bound to be less efficient than trial of the defendants in an Article III court. What was already destined to be a difficult road was complicated by the nature of such commissions: because they are staffed by military judges who rotate in and out, the judges (and lawyers) must devote significant time to catching themselves up on the proceedings to date. Moreover, the commissions’ procedures are untested, their physical location difficult to reach (on a hurricane-prone island), and many of the substantive issues they must adjudicate are novel. This reality creates opportunities to litigate that which might reasonably have been seen as well settled, including the issues associated with the constitutional prohibition on the use of confessions produced through torture at trial, in any form.
Third, there is the cost to the public in general and the family members of the victims of the 9/11 attacks in particular, all of whom are still entitled to, and have yet to see, any kind of accountability for these horrific terrorist attacks. Indeed, in a sense, accountability is the point of any criminal justice system—the goal is to determine, through a fair process, whether the government can prove that the persons it has accused of a crime are guilty beyond reasonable doubt, and that they should be punished accordingly. Because of the decision by the U.S. government to allow the use of torture on the 9/11 suspects, that goal remains unmet even after, literally, more than two decades.
In fact, the military commission recently set a trial date for Mohammed and his co-plotters: June 5, 2028. If that date holds, it will be 16 years since Mohammed was first arraigned and 27 since the attacks took place. The wheels of justice turn slowly indeed—more so when they must navigate the obstacles posed by “enhanced interrogation techniques.”
