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4 years in the past, in dramatic testimony, a U.S. psychologist described in open courtroom how he had threatened to slit the throat of a younger son of Khalid Shaikh Mohammed, the accused mastermind of the Sept. 11 assaults, if one other Qaeda assault claimed the lifetime of an American youngster.
On Wednesday, Dr. James E. Mitchell advised a surprised courtroom that episode had not occurred. “I didn’t say something about killing his son,” mentioned Dr. Mitchell, a retired Air Power psychologist who in 2003 waterboarded Mr. Mohammed 183 occasions for the C.I.A. “He didn’t have sons till later.”
Dr. Mitchell later acknowledged he had forgotten his risk. However the episode underscores a brand new problem for the army courtroom within the case in opposition to 4 prisoners who’re accused of conspiring within the assaults that killed practically 3,000 individuals on Sept. 11, 2001: the fading recollections and unavailability of witnesses whose testimony is central to getting the death-penalty case to trial.
Testimony and different proof usually deteriorate over time, which is one motive that legal defendants and their victims are entitled to a speedy trial.
This month, two retired Military officers have been too sick to journey to Washington to testify concerning the defendants’ well being and jail circumstances at Guantánamo in early 2007. It was a vital interval within the case, when prosecutors say the defendants voluntarily confessed to their crimes. Protection attorneys argue the confessions have been contaminated by torture and secret collaboration between the F.B.I. and the C.I.A.
One witness was the defendants’ first psychiatrist at Guantánamo. The opposite was their first jail commander. A 3rd key witness from that interval, the prisoners’ first treating doctor at Guantánamo, died in 2018 earlier than his testimony might be obtained.
In November, Jacqueline Maguire, a senior F.B.I. official, mentioned 199 occasions that she didn’t bear in mind particular data from the time, as a first-year particular agent, she led the investigation of the 5 hijackers who commandeered the airplane that crashed into the Pentagon.
Getting Dr. Mitchell to recollect was straightforward sufficient. Mr. Mohammed’s lawyer confirmed him web page 31,362 of the pretrial listening to transcript together with his testimony from January 2020. In it, Dr. Mitchell defined that he had consulted with a C.I.A. lawyer in the course of the interval when he was waterboarding Mr. Mohammed and was advised to make the risk to kill his prisoner’s son conditional.
Dr. Mitchell, who’s now in his 70s, mentioned the passage “jogged” his reminiscence. However not fully. He testified this week that within the 2003 risk he was “referring to the son who had simply been born.” Mr. Mohammed’s lawyer, Gary D. Sowards, replied that the new child was a woman, although Mr. Mohammed had 4 older sons.
Failed recollections more and more determine within the pretrial part, which started with arraignment in 2012. Slightly than attempt to deliver the accused Sept. 11 assault plotters to justice promptly, the George W. Bush administration had them brutally interrogated in 2002 and 2003 to attempt to uncover extra pending assaults — after which held them incommunicado in so-called black websites for years, a detour whose particulars are nonetheless categorised.
Anisha P. Gupta, a protection lawyer, advised the choose final week that she had tried to talk with two key, if nameless, witnesses about what had been completed to her shopper, Walid bin Attash, within the C.I.A. prisons — and was advised that one was useless and the opposite “has dementia and can’t communicate to us.”
One would-be witness, the C.I.A.’s chief interrogator in its black web site jail community, died earlier than the lads have been charged. In 2003, the officer had medical officers “rectally rehydrate” Mr. Mohammed as a result of he had refused to drink some water throughout an interrogation. Medical consultants have discredited the process; protection attorneys name it rape.
Col. Matthew N. McCall, the choose, seems poised to rule on the query of whether or not all that anonymity and thwarted entry to C.I.A. witnesses is an obstacle to a good trial. However Colonel McCall retires later this yr. He may need to depart that query to the subsequent choose, who would be the fifth to preside within the case at Guantánamo Bay.
The issue of witnesses dying off or forgetting particulars additionally afflicts the federal government’s case. Lee Hanson, whose son, daughter-in-law and 2-year-old granddaughter have been killed aboard United 175, volunteered early to offer a sufferer influence assertion on the eventual trial. He died in 2018.
Prosecutors organized to document his testimony prematurely. However a choose would want to determine, if there’s ever a conviction, whether or not it might be used at a trial.
Final week, a retired F.B.I. agent, James Fitzsimmons, required a headset to listen to attorneys standing simply ft away from him contained in the courtroom. He appeared to misconceive a query from a army lawyer and mentioned that he was unaware of a C.I.A. program that secretly used F.B.I. brokers to interrogate suspects on the black websites.
This week, Clayton G. Trivett Jr., a Sept. 11 case prosecutor, made a uncommon correction to the document by asserting that Mr. Fitzsimmons truly had been assigned to this system and labored for the C.I.A. as an interrogator on the company’s black web site at Guantánamo, which opened in 2003 and closed in 2004. It was the primary public identification of an F.B.I. agent who had been in this system.
Reminiscence figured closely in Dr. Mitchell’s testimony this week as prosecutors tried to shore up their argument that the suspects had voluntarily incriminated themselves.
In prolonged testimony, he defined the psychological principle of “worry extinction” and his evaluation of the way it utilized to Mr. Mohammed: Sure, waterboarding and different violent “enhanced interrogation methods” have been used on Mr. Mohammed throughout his first month within the C.I.A. jail community. However, Dr. Mitchell mentioned, the prisoner was then questioned greater than a thousand occasions throughout his subsequent three years in company detention and regained his sense of management over his actions and penalties, shed his C.I.A. conditioning — as a result of the violence was not repeated.
Well being points have additionally impaired progress in the course of the pandemic. On Thursday, the choose postponed extra testimony from Dr. Mitchell that had been scheduled to undergo the weekend as a result of one of many death-penalty protection attorneys, whose attendance is required at courtroom, had examined optimistic for the coronavirus at Guantánamo Bay.
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