The FBI is quietly reconstructing the cases against Khalid Shaikh Mohammed and 14 other accused Al Qaeda leaders being held at Guantanamo Bay, Cuba, spurred in part by U.S. concerns that years of CIA interrogation have yielded evidence that is inadmissible or too controversial to present at their upcoming war crimes tribunals, government officials familiar with the probes said.
The process is an embarrassment for the Bush administration, which for years held the men incommunicado overseas and allowed the CIA to use coercive means to extract information from them that would not be admissible in a U.S. court of law -- and might not be allowed in their military commissions, some former officials and legal experts said. Even if the information from the CIA interrogations is allowed, they said, it would probably risk focusing the trials on the actions of the agency and not the accused.
The FBI investigations, involving as many as 300 agents and analysts in a “Guantanamo task force,” have been underway for as long as two years. They were requested by the Defense Department shortly after legal rulings indicated that Mohammed -- the self-proclaimed mastermind of the Sept. 11 terrorist attacks -- and the other Al Qaeda suspects probably would win some form of trial in which evidence would have to be presented, according to senior federal law enforcement officials.
The task force has reviewed intelligence, interviewed the 15 accused Al Qaeda leaders and traveled to several nations to talk to witnesses and gather evidence for use in the tribunals, the federal law enforcement officials said. Like most others interviewed for this article, they spoke on the condition of anonymity, citing the sensitivity of the investigations, which are being coordinated with the Pentagon.
A Pakistan-based U.S. official who has participated in the hunt for Al Qaeda leaders since 2001 said he was interviewed by FBI agents four months ago in Washington. They were “very aggressively pursuing KSM and all of the things he’s been involved in,” he said, referring to the accused terrorist by his initials.
The FBI is especially interested in Mohammed, who during the more than three years he spent in CIA custody boasted that he had killed Wall Street Journal reporter Daniel Pearl and orchestrated more than two dozen other terrorist plots. Several senior counter-terrorism officials said they believed that Mohammed falsely confessed to some things, including the Pearl slaying, under duress or to obscure the roles played by operatives who might still be on the loose.
Mohammed’s prosecution is expected to be the centerpiece of the military commissions, which could occur as early as next year. However, some U.S. officials familiar with them said the tribunals could be delayed for years by legal challenges.
The FBI’s efforts appear in part to be a hedge in case the commissions are ruled unconstitutional or never occur, or the U.S. military detention center at Guantanamo Bay is closed. Under those scenarios, authorities would have to free the detainees, transfer them to military custody elsewhere, send them to another country or have enough evidence gathered by law enforcement officials to charge them with terrorism in U.S. federal courts, some current and former counter-terrorism officials and legal experts said.
“I think there’s no surprise that they have to call in the FBI to clean up the mess left by the CIA secret detention program,” said Jumana Musa, advocacy director for Amnesty International. “They would be smart to use evidence that did not come out of years of secret detentions, interrogations and torture.”
Special Agent Richard Kolko, an FBI spokesman, said the investigations were a natural outgrowth of a long-standing interagency effort. “The FBI will support the prosecution of KSM and other high-value detainees by making its investigative and evidentiary expertise available to the prosecution team,” he said. He referred all other questions to the Defense Department.
Navy Cmdr. Jeffrey D. Gordon, a Pentagon spokesman, said the Defense Department was working closely with its interagency counterparts in “building a case against KSM and scores of other men at Guantanamo alleged to have committed law of war violations -- including the attacks of 9/11, USS Cole bombing [in 2000] and East Africa embassy bombings [in 1998].”
Neither those two men nor CIA spokesman George E. Little would comment on whether the FBI investigations were being conducted to bolster shortcomings in the cases against Mohammed and the others that are, at least in part, the result of CIA interrogations.
FBI officials interviewed for this article emphasized that the bureau’s probes should not be viewed as a repudiation of the CIA’s efforts, noting that the spy agency’s primary responsibility has been to gather intelligence to prevent further attacks, not collect evidence for trial.
But some former and current U.S. officials said concerns about the potential inadmissibility of the CIA interrogations, and the controversy surrounding them, were the primary reasons the FBI agents were sent to gather more evidence, in some cases reinterviewing suspects and witnesses.
The FBI and CIA have appeared to be headed for a collision on the issue of detainee interrogations since shortly after the September 2001 attacks.
From the outset, the FBI has played a central role in the hunt for Al Qaeda leaders, helping the CIA, the military and foreign governments track them and process evidence against them. FBI agents initially helped interview some of the suspects, with an eye toward gathering evidence for a criminal trial.
After Mohammed’s March 2003 capture in Pakistan, some FBI agents and federal prosecutors made clear they wanted him tried before a jury. The Al Qaeda leader had been indicted by a federal grand jury in New York in 1996 for his role in an alleged Philippines-based plot to blow up U.S. airliners in mid-flight over the Pacific Ocean.
But the CIA moved aggressively to take over the interrogations of Mohammed and other senior Al Qaeda detainees, beginning with suspected training camp coordinator Abu Zubeida, who was captured in Pakistan in 2002. Some current and former FBI officials said the spy agency began using coercive techniques such as waterboarding, or simulated drowning, in an effort to get the detainees to talk immediately about the terrorist network’s plans.
CIA officials told The Times that the FBI wasn’t getting crucial information about pending attacks out of Zubeida that they knew he possessed, and that their “enhanced” techniques ultimately worked better and faster. Current and former FBI officials said those CIA techniques resulted in false confessions that were obtained illegally.
By mid-2002, several former agents and senior bureau officials said, they had begun complaining that the CIA-run interrogation program amounted to torture and was going to create significant problems down the road -- particularly if the Bush administration was ever forced to allow the Al Qaeda suspects to face their accusers in court.
Some went to FBI Director Robert S. Mueller III, according to the former bureau officials. They said Mueller pulled many of the agents back from playing even a supporting role in the interrogations to avoid exposing them to legal jeopardy, in the belief that White House and Justice Department opinions authorizing the coercive techniques might be overturned.
“Those guys were using techniques that we didn’t even want to be in the room for,” one senior federal law enforcement official said. “The CIA determined they were going to torture people, and we made the decision not to be involved.”
A senior FBI official who since has retired said he also complained about the lack of usable evidence and admissible statements being gathered. “We knew there were going to be problems back then. But nobody was listening,” he said. “Now they have to live with the policy that they have adopted. I don’t know if anyone thought of the consequences.”
Another retired FBI agent who helped lead the bureau’s Al Qaeda investigations said one fundamental flaw in the tribunal process was that the accused terrorists might be granted the right to confront their accusers in court -- even a military one. And the CIA is likely to prohibit its officers from taking the stand to face cross-examination about their interrogation techniques and other highly classified aspects of the spy agency’s detainee program.
“They have put themselves in a very bad situation here,” the former agent said. “They have to redo everything because they have to come up with clean statements from these [detainees], if they can get them, obtained by law enforcement people who can actually testify. The CIA agents are not going to testify, nor should they.”
Pentagon spokesman Gordon and CIA spokesman Little said no decision had been made on how much information gathered by the CIA, including the interrogations, would be allowed into evidence at the commissions. They also said it was too early to tell whether the CIA agents would testify, although the courtrooms for the military commissions, Gordon said, would be designed with partitions to protect the witnesses’ identities and with mute buttons to allow for classified testimony.
“When it comes to the high-value detainees,” Little said, “it was, most of all, the efforts of the CIA -- following a lawful, effective and safe process -- that led these terrorists to share concrete, actionable intelligence that our government used to identify other terrorist figures and disrupt their activities.”
Some former FBI officials and legal analysts said that even if evidence gathered through the CIA interrogations were admissible, it had lost significant credibility because of the allegations of coercion and torture.
CIA officials have said that they never tortured the detainees and that they operated within the law.
Ultimately, some of the terrorism suspects confessed. But the coercive techniques made even some CIA officials skeptical of whether their confessions were believable, much less sustainable in any court, one former CIA counter-terrorism covert officer said.
The decision to minimize the FBI’s role in interrogating the suspects “was regarded by many as really being in error, in part because [CIA officers] don’t have the expertise as to what is evidentiary and what isn’t,” the official said. “And now there are all of these consequences.”
Musa of Amnesty International said: “People like KSM should be held accountable. And the real tragedy would be that the focus of the commissions won’t be on scrutinizing the conduct of Mohammed and the others, but on the conduct of the CIA.”
Federal law enforcement officials believe they have gathered enough admissible evidence to try the high-value detainees. “We’ve redone everything, and everything is fine,” one official said. “So what’s the harm?”