Andrew Napolitano

America’s longest current criminal prosecution is in its 15th year, on its fifth judge, and still has no trial date.

The defendants are Khalid Shaikh Mohammed and four alleged mass murder co-conspirators. Mohammed is the second person that the government has characterized as the ringleader of the attacks on Sept. 11, 2001. Originally, the feds had labeled Osama bin Laden as the ringleader. Yet, rather than charging and arresting bin Laden, in order to keep him quiet it sent a team of Navy Seals to his home in Pakistan to murder him and his wife and their children.

After that, the feds labeled Mohammed as the orchestrator of 9/11 even though that, by the time of bin Laden’s death, Mohammed had been in U.S. custody for eight years. During that time, he was brutally tortured by CIA officers and other U.S. civilian agents.

His torture was truly repellant. He was waterboarded 183 times. He was hanged by his wrists while naked and in well-lit walk-in refrigerators such that he was freezing and denied sleep for days. His head was smashed repeatedly against wooden walls. His rectum, through which)he was fed, was so brutalized that he bled for months, often ingesting into his intestines his own blood and fecal material.

At the end of three years of these criminal attacks at foreign sites operated by cooperating intelligence agencies with the torture administered by Americans, he told his torturers what he thought they wanted to hear. Then he was transferred to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained since 2007.

Upon his arrival at Gitmo, a different set of interrogators took over. The video tapes of his hundreds of torture sessions were destroyed but not the transcripts of his confession. The purpose of the second round of interrogations was to elicit another confession by agents who could testify to a judge that they did not torture him, and that his confession to them was not coerced.

The government, which once denied but now admits to the torture, nevertheless was prepared to argue that his second confession was voluntary. Then, the feds had a change of heart. And, two years ago, his lawyers entered into plea negotiations, at the request of the government because the military lawyers and their Department of Justice legal colleagues concluded that they could not ethically defend torture in an American courtroom.

The government and all defense lawyers entered into a plea agreement that provided for full public confessions, a public confrontation by family members of 9/11 victims during which the defendants agreed to reply truthfully to their questions, and, of course, life in prison at Gitmo.

Then, the Biden administration Defense Secretary Lloyd Austin fired the general who approved the plea agreement and revoked the Pentagon’s approval.

Though the government now admits that the first confession was not voluntary, its relevance here is not the words Mohammed told his torturers but the degradation of his mental faculties due to the egregious tortures such that the second confession was also not voluntary.

This is a two-edged sword for the government. If the confession is read to the jury, then the defendants and their experts can relate to the jury all the horrific things the government did in order to produce the confessions. But if the confession does not come into evidence, then the jury will not hear of the tortures unless there is a conviction and the torture testimony is presented in mitigation of punishment.

What we have here is a lawless system of brutality. It is the tool of monsters.

On the eve of America’s 250th anniversary, we are asked to accept government at its worst; one that the Framers thought they had prohibited and one to which the governed never consented.