In a six-week period straddling the twenty-fifth anniversary of the September 11, 2001, terrorist attacks, the 9/11 military commission has suffered a simultaneously improbable and predictable collapse. Since Aug. 28, the presiding military judge, Lt. Col. Michael Schrama, suppressed the supposed “confessions” of three of the four alleged 9/11 co-conspirators: Khalid Sheikh Mohammad (KSM), Mustafa al-Hawsawi, and Walid bin Attash. An earlier presiding military judge, Col. Matthew McCall, suppressed the “confession” of the fourth accused, my former client Ammar al-Baluchi, in April 2025. Together, these rulings have torn the evidentiary heart out of the government’s case. Now, facing a trial date of June 5, 2028, the 9/11 prosecution team must go forward without the “very important, very critical” evidence—evidence it has spent the better part of a decade and enormous resources litigating to preserve.
Despite having spent the last 23 years in U.S. custody, the accused mastermind of the attacks, KSM and the three other men, have neither been tried nor convicted for their alleged role in those attacks. Instead, for 15 years, the 9/11 military commission—the supposed law-of-war tribunal responsible for adjudicating his case—has lumbered on in a slow, expensive, and largely forgotten slouch toward ignominy. The tribunals’ excruciating pace is due largely to the United States’ wrongheaded turn to the “dark side” and its embrace of torture in the wake of the 9/11 attacks. Seemingly endless pre-trial litigation has flowed from the accused’s years-long torture, the government’s efforts to launder the torture into admissible evidence, and its stalwart determination to preserve the secrecy of a program shuttered nearly two decades ago. Today, those efforts seem beyond misguided and, at a time of increasing American lawlessness, their failures are a timely reminder that justice admits no shortcuts, and that the government fares better when it abides by the law and U.S. principles.
The Dark Side
Less than a week after the 9/11 attacks, President George W. Bush signed a classified Memorandum of Notification authorizing the CIA to undertake a covert program to kidnap and imprison high-value terrorists. Although his memo did not mention interrogation, the U.S. government embraced the directive as authorization to do so. Moreover, the president’s order became the basis for disappearing suspected terrorists (and sometimes their families) into an archipelago of dungeons around the world; denying them access to lawyers, their families, the International Committee of the Red Cross (ICRC), and the outside world generally; brutalizing them with so-called enhanced interrogation techniques, approved and not; and training them to answer questions posed by American interrogators by repeatedly reminding them of their torture or risk a return to “hard times.” All told, between 2002 and 2008, the United States abducted at least (the CIA did not keep track) 119 people and tortured at least 39 of them—including KSM and his alleged co-conspirators, Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi, and Mustafa al-Hawsawi. Their incommunicado detention and treatment while in U.S. custody violated both U.S. and international law, including the laws of war.
By early 2006, revelations of the United States’ so-called Rendition, Detention, and Interrogation (RDI) program and ensuing diplomatic backlash, including from countries hosting CIA black sites, forced the United States to wind it down. But in embarking on its global project of disappearances and torture, the United States had failed to plan for the disposition of its victims beyond perpetual incommunicado detention. Indeed, the CIA interrogators sought assurances from CIA headquarters that victims of U.S. torture would never be released. They led several detainees to believe they would never leave U.S. custody or have access to lawyers or the outside world, and one CIA interrogator famously told Abu Zubaydah, the first CIA detainee tortured by the United States, “that the only way he would leave [a CIA black site] was in the coffin-shaped confinement box.” At the same time, it was publicly known that some, like KSM, were in U.S. custody. For example, the 9/11 Commission Report, published in 2004, was littered with citations to the interrogation reports of disappeared detainees. Presumably, along with the CIA’s insistence that at least some of the RDI program enrollees never leave U.S. custody, the Bush administration found the prospect of simply releasing KSM unpalatable. Instead, the military commissions at Guantanamo seemed to offer a neat solution. They could serve as tribunals controlled by the executive branch and subject to its rules about classification, as well as a way to quickly secure convictions and death sentences for accused terrorists. The military commissions could simultaneously deliver justice for the victims of the 9/11 and other terrorist attacks, while avoiding public revelation of the torture program’s brutality that could come from a trial in a regular, civilian court. Thus, in September 2006, the Bush administration transferred 14 “High Value Detainees,” including KSM, from CIA custody to nominal military custody at Guantanamo; all other CIA detainees had been transferred or released from U.S. custody or had died.
The Bush administration’s decision to prosecute by military commission the 14 men transferred to Guantanamo in September 2006 created a problem, however: what evidence to use against the men? Even before transferring the men, the government recognized that statements made by KSM and the others to interrogators while in the RDI program—which the government characterized as a “coercive environment”—would not be admissible even before a military commission. So, it devised a scheme to launder the proceeds of its torture for use at a trial. First, it would transfer KSM and the 13 others to Guantanamo. It would place them in “military” custody and halt their interrogations for several months. It would allow the ICRC to visit them, giving those 14 men their first contact with the outside world since entering U.S. custody years earlier. Then, after about four months, the U.S. government would dispatch FBI-led interagency “clean teams” to re-interview the men and secure new confessions. These “clean” confessions, memorialized in compiled reports known as letterhead memoranda (LHM), would furnish the evidence necessary to convict them before the military commissions.
In retrospect, the Bush administration’s effort to manufacture admissible evidence through attenuation of torture seems half-hearted at best. KSM and the 13 others were segregated from the several hundred detainees then in military custody at Guantanamo, consigned to a top-secret facility that the Senate Select Committee on Intelligence found was operationally controlled by the CIA and staffed by contractors pretending to be members of the U.S. military. Conditions at this facility were “markedly similar to those at previous” black sites. Absent contact with lawyers or family, a single visit from the ICRC could not transform the incommunicado quality of their detention. And a four-month reprieve from interrogation pales in comparison to years of continuous detention punctuated by periodic reminders of earlier torture and the threat of its renewal should they cease answering American questions.
At the outset of their “clean” interviews, the FBI agents failed to advise the men that they had a right to counsel. In fact, the agents were instructed to refuse any request for counsel made by the men. Rather than record verbatim the questions asked and answers given, the FBI subsequently reconstructed narratives that they attributed to the men based on their new interviews. Incredibly, even the “clean teams” were polluted by the U.S. torture program. The FBI agents that interviewed KSM and the others in January 2007 had access to the fruits of the detainees’ earlier torture while they prepared to re-interview them and, thus, the new interviews were tainted by that torture. In some cases, the FBI agents involved had even participated in the RDI program by sending questions to the men’s CIA torturers. Worse, others had been deployed to the RDI program itself, becoming temporary CIA employees for purposes of participating in the unlawful detention, torture, and interrogation of the men. Finally, the interviews themselves took place in the former CIA black site at Guantanamo, a location at which several of the men undergoing “clean” interviews had been held and interrogated by the CIA previously.
Inadmissible Evidence
These and other features of the U.S. government’s efforts to launder the proceeds and victims of torture for trial have now proved to be the undoing of the government’s most important evidence. Since the 9/11 accused moved to suppress their LHM in 2019, judges in both the 9/11 and USS Cole military commissions have thrown out the “clean” statements of all five accused across those two proceedings. In each case, the judges have found that the statements made by detainees to “clean teams” in early 2007 were involuntary. As the Military Judge Matthew McCall found, “The goal of the [RDI] program was to condition [detainees] through torture and other inhumane and coercive methods to become compliant during any government questioning. The program worked.” Likewise, Military Judge Michael Schrama found that the
explicit intent of [the RDI] program was to break Mr. Mohammad’s resistance and condition him to answer questions. Furthermore, the CIA utilized operant conditioning to instill an enduring fear of the broader U.S. Government . . . , conditioning him to believe that a failure to cooperate fully and spontaneously would result in a return to severe physical mistreatment and a loss of basic amenities.
The RDI program taught its victims that they were “helpless to resist the torture, and that cooperation meant a lessening of abuse and an increase in rewards,” according to Military Judge Schrama. As described by Military Judge McCall, that conditioning persisted for the duration of the accused’s time in the RDI program through “constant reminders, whether directly communicated or contextually inferred, that a failure to cooperate with debriefers and to answer questions the way he had been trained could lead to a return to EITs or a loss of his limited amenities.” Rather than vitiate the defendants’ earlier conditioning, the transfer to Camp VII at Guantanamo reinforced it through similar conditions of confinement and relations with guards and interrogators. Still, the government may have been successful in attenuating the detainees’ torture had it informed them of their rights to counsel and to remain silent, and by assuring them that statements given under torture would not be used against them. That would have been the normal course for the FBI, even when interviewing alleged members of al-Qaeda taken into U.S. government custody overseas. But, “crucially,” the government affirmatively chose to discard its ordinary practice in attempting to launder its earlier torture and prolonged incommunicado detention of these “High Value Detainees.” Finally, the involvement of the FBI and its “clean” agents in the RDI program polluted them, extending the taint of torture notwithstanding the government’s tepid efforts to construct attenuation and manufacture admissible evidence.
Like the military jury’s extraordinary call for clemency in United States v. Khan, the military commissions’ rejection of the government’s attempts to launder its torture in the 9/11 and USS Cole cases should be read as a warning of the fragility of these cases. The Court of Military Commission Review already affirmed the suppression of the Abd al-Rahim al-Nashiri’s LHM in the Cole case 19 months ago. While the government’s interlocutory appeal of the suppression of al-Baluchi’s LHM is pending before that body, its decision in al-Nashiri suggests that the 9/11 prosecution will have to go forward without al-Baluchi’s supposed confession. Indeed, seemingly bowing to this reality, the 9/11 prosecutors informed victim family members that it would not seek interlocutory appellate review of the military judge’s decision to suppress KSM’s LHM shortly after it was handed down; there is little reason to believe it will do differently with al-Hawsawi or bin Attash.
As shocking as the collapse of the government’s trial strategy is some 20 years into this effort, it is hardly surprising. After all, the RDI program was plainly illegal from the outset. The government knew better than anyone of the defects embedded in its effort to manufacture “clean” confessions, and the infirmity of its refusal to provide the men interviewed in early 2007 with counsel. And the government itself rejected the use of LHM in the federal criminal prosecution of Ahmed al-Ghailani, the one “High Value Detainee” brought from Guantanamo to the United States to face prosecution in an ordinary court. All to say that it did not have to be this way. Had KSM been brought to the United States for trial in a civilian court—even after his torture—this case would be long over. Had the government not attempted to manufacture admissible evidence and then fought to use it, years of pre-trial litigation could have been avoided. Had the government not been—and if it did not remain—so dedicated to obscuring its post-9/11 torture, at least a billion dollars could have been saved. Had the government not decided to abandon its principles and discard the law in the wake of 9/11, the United States could have avoided the indelible stain of state-sponsored torture.
In the end, in exchange for breaking and brutalizing men, abandoning its values, and marring its reputation, the United States’ embrace of torture after 9/11 produced little. Torture proved ineffective at obtaining actionable intelligence as the CIA knew it would be. And, for two decades, torture—its consequences and the government’s insistence on obscuring it—has stymied efforts to deliver justice for the victims of terror and their family members.
Altogether, the 9/11 military commission’s rejection of the government’s effort to launder the proceeds of torture is a lesson that securing justice requires more than checking boxes or sophistic legal alchemy. It’s a lesson that adhering to long-held principles and the rule of law is cheaper and more efficacious, in the long run, than discarding them. It’s a lesson we have done our best to not learn over the last 25 years—and one that it’s imperative to learn now, as the U.S. government increasingly, even gleefully, breaches international law and abuses its domestic authority.
