THE BURNED OVER DISTRICT

In the September 11 trials at Guantanamo the judge has thrown a monkey wrench into prosecution plans by refusing to allow post CIA torture FBI interrogations to be used in court.

The judge in the death-penalty trial of those accused of carrying out the Sept. 11, 2001, terror attacks in the U.S. has ruled that prosecutors may not use key FBI interrogations conducted at the Guantánamo detention center soon after years of CIA black site abuse ended.

Under the war court system, confessions must be voluntary. So prosecutors had already pledged not to use what the captives told their CIA interrogators during their years of secret spy agency custody that included torture. Instead, as a substitute, prosecutors had planned to have FBI agents describe what the suspects told them soon after their September 2006 transfers to Guantánamo in supposedly consensual interviews.

But the judge, Army Col. James L. Pohl, excluded the FBI interviews, known as “clean team statements,” from trial in a 36-page ruling.

“Protective Order #4 will not allow the defense to develop the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in CIA custody the defense alleges constituted coercion,” Pohl wrote in the ruling issued Friday and obtained by McClatchy.

“In order to provide the defense with substantially the same ability to make a defense as would discovery of or access to the specific classified information, the government will not be permitted introduce any FBI Clean Team Statement from any of the accused for any purpose.”

Defense attorneys, who have top-secret security clearances, argued that the prosecutors’ cascading restrictions and threats over trying to find and question potential witnesses of their clients’ torture, notably CIA agents, deprived the accused 9/11 plotter Khalid Sheik Mohammed and four alleged accomplices of a fair trial.

Prosecutors countered that restrictions on defense attorneys were a national security necessity — and that the U.S. government had given defense lawyers enough CIA-screened and redacted documents or court-approved substitutions of actual evidence about the black sites, to let them try to get the Guantánamo interrogations excluded.

To defend prohibitions on defense investigations, chief prosecutor Army Brig. Gen. Mark Martins told the judge in a Jan. 11 hearing: “The mere seeking of interviews with people — and wandering up and ambushing people at the Piggly Wiggly — is a serious thing.”

The accused plotters were brought to Guantánamo after three and four years of secret detention in the CIA’s secret overseas prison network. There, to get them to spill al-Qaida secrets, CIA agents subjected them to a program of “learned helplessness.” They slammed their captives’ heads into walls, strung them up in painful shackled positions, deprived them of sleep, kept them nude or in diapers, subjected them to dietary manipulation and rectal abuse. Mohammed was water boarded 183 times.

FBI agents, taking some directive by the CIA, questioned the five men in their first months at Guantánamo before they were allowed to see lawyers.

Defense lawyers had begun to argue that the alleged 9/11 plotters were so systematically broken, that what they told the FBI agents were programmed responses, lacking free will to say anything else.

But Pohl did not specifically rule on the issue of whether the FBI interviews were contaminated by the CIA abuse.

Instead, he found that the screened evidence Martins and his prosecutors gave defense lawyers did not provide enough details about the CIA period to let the defense effectively argue for suppression of the FBI interviews. So Pohl suppressed them.

In the same ruling, however, Pohl he agreed with prosecutors that the defense attorneys could be deprived of some graphic details of what went on in the black sites. So he found that, if the men are eventually convicted, prosecutors have given the defense attorneys enough information about what the CIA did to the alleged terrorists to argue against the death penalty.

Torture doesn't work, even after you stop doing it. It just taints everything that follows. And it's illegal.