Guantánamo judge throws out Khalid Sheikh Mohammed’s 2007 FBI confessions

Air Force Lt Col Michael Schrama ruled on Friday that confessions Khalid Sheikh Mohammed made to FBI agents at Guantánamo Bay in 2007 cannot be used at trial. The 45-page order, first described in detail by the New York Times, finds that prosecutors failed to prove by a preponderance of the evidence that the statements were voluntary. Schrama also excluded later FBI interrogations from the same year.

The judge wrote that the 2007 sessions were an unbroken continuation of the CIA’s psychological conditioning and severe coercion. Mohammed was captured in Rawalpindi on 3 March 2003 and held in the agency’s black-site system, where he was waterboarded, before transfer to the naval base. Schrama found that FBI agents then failed to tell him, in terms he could use, that he had a right to remain silent, a right to consult a lawyer, and that his words could be used in court.

The ruling lands two weeks before the 25th anniversary of the 11 September 2001 attacks, which killed nearly 3,000 people in New York, Washington and Pennsylvania. Earlier this week the same judge set 5 June 2028 as the trial date for Mohammed and co-defendants Walid bin Attash, Mustafa al-Hawsawi and Ali Abdul Aziz Ali. Plea agreements that would have taken the death penalty off the table were revoked last year. Rear Adm. Aaron C. Rugh, the chief prosecutor, told the Times he would review Friday’s order and decide soon whether to appeal. An appeal would put the 2028 date at risk again.

Mohammed told a Combatant Status Review Tribunal in March 2007 that he was responsible for the 11 September operation from A to Z and that he had been Osama bin Laden’s operational director for the plot. Prosecutors have treated that statement as a pillar of the capital case. Defence lawyers have argued for years that nothing said after the CIA period can be separated from it. Schrama has now accepted the core of that argument for the FBI chapters.

What remains for the government is evidence that does not run through those interviews: travel records, money trails, the testimony of other witnesses, and physical material gathered outside the black sites. Whether that file can carry a death-penalty case in a military commission is now the practical question. Families of the dead have waited through two decades of venue fights, recusals, revoked deals and classified discovery. Several have said in public that they fear Mohammed will die in the camp before a verdict. He is in his sixties. The new trial date is 21 months away. Friday’s order makes that calendar less stable, not more.

The commission system was built to try cases the government did not want in federal court. The cost of that choice is visible again. A confession that would have been litigated once, under the familiar rules of a district judge, has been litigated for years inside a court that still cannot say, in public and on time, what a jury may hear. Schrama’s sentence is short. The statements were not voluntary. The next sentence belongs to the court of appeals, if Rugh files.