Guantanamo judge throws out Khalid Sheikh Mohammed's 2007 FBI confession

A U.S. military judge ruled on Friday, 28 August, that Khalid Sheikh Mohammed's 2007 statements to FBI agents cannot be used against him at the September 11 military commission. Air Force Lieutenant Colonel Michael Schrama wrote, in a 45-page order whose unclassified passages were described to the New York Times by lawyers who had read it, that the prosecution had failed to prove by a preponderance of the evidence that the statements were voluntary.

The interviews ran over four days at Guantanamo Bay in January 2007. They were run by a so-called clean team of FBI agents, including Frank Pellegrino, one of the original case agents. Prosecutors had already agreed to keep out the statements Mohammed made in CIA black sites, where he was waterboarded and otherwise coerced after his March 2003 capture in Pakistan. The government hoped the later FBI sessions would stand. Schrama said they did not.

Why the clean team was not clean enough

Schrama found an unbroken continuation of the CIA's psychological conditioning and severe coercion into the 2007 questioning. He also found that FBI agents did not tell Mohammed he had a right to remain silent, a right to consult a lawyer, and that his words could be used at trial. Mohammed was told he could not speak to a lawyer. The judge concluded that the earlier CIA treatment left him fearing fresh abuse if he refused to talk.

Pellegrino told CBS News he believed the confession was voluntary. He said he could not have been more explicit that Mohammed did not have to speak to him. That account now sits against a written finding that the setting, the history and the missing warnings made the interviews involuntary as a matter of commission law.

Mohammed, a Pakistani engineer who studied in the United States, has long been described by the government as the operational planner of the 2001 attacks. In a March 2007 Combatant Status Review Tribunal he said he was responsible for the 9/11 operation from A to Z. That tribunal statement is a separate record from the FBI interviews Schrama suppressed. How much of the remaining file still supports a capital case is now the prosecution's problem.

A trial date that keeps slipping

Earlier this week Schrama set trial for 5 June 2028 for Mohammed and three co-defendants. The date is almost 27 years after the attacks that killed nearly 3,000 people in New York, Washington and Pennsylvania. Plea talks have collapsed more than once. Evidence fights have eaten years. Rear Admiral Aaron C. Rugh, the prosecutor, told the Times the government would decide soon whether to appeal Friday's order.

The 25th anniversary of the attacks falls on 11 September 2026, two weeks after the ruling. Families who have waited through two decades of commission procedure now face a file with one of its central narrative pieces removed. The government can still try the case on other evidence: travel records, money trails, co-conspirator statements that survive their own motions, and physical traces from the planes and the plots. It cannot tell the panel that Mohammed sat with FBI agents in 2007 and walked them through the plan as a free choice.

What the order does not do

The ruling does not free Mohammed. It does not cancel the 2028 date. It does not decide the co-defendants' statements. It decides one block of interviews. That block had been treated, inside the Justice Department and the Pentagon, as the bridge between the CIA chapter and a courtroom that could impose death. Schrama cut the bridge.

Commission judges have suppressed other fruits of the CIA program in this case and in others. Friday's order is specific: the FBI sessions of January 2007, and subsequent FBI questioning that same year, are out. If an appeals court reinstates them, the trial record changes again. If it does not, prosecutors will walk into 2028 with a thinner script than the one they have carried since Mohammed arrived at the base in 2006.