Lawyers: Scan suggests alleged 9/11 plotter suffered head injury in CIA custody

FILE - In this March 1, 2003 file picture, Khalid Sheikh Mohammed is seen shortly after his capture during a raid in Pakistan.  (AP Photo/File)
FILE - In this March 1, 2003 file picture, Khalid Sheikh Mohammed is seen shortly after his capture during a raid in Pakistan. (AP Photo/File)

Brain scans conducted on the man accused of orchestrating the 9/11 attacks show damage consistent with abuse he might have suffered in CIA custody, his lawyers reveal in a war court memo obtained by McClatchy. If proven, the development could make it less likely that he would face the death penalty.

Lawyers for Khalid Sheik Mohammed, 53, who revealed the terror suspect's brain damage in a memo to be raised at pretrial hearings this week, are seeking more sophisticated studies.

Mohammed and four alleged accomplices are in pretrial, capital case proceedings for the terror attacks that killed 2,976 people in New York, Pennsylvania and at the Pentagon on Sept. 11, 2001. Proof of a traumatic brain injury could cause a court to spare him the death penalty. And if it didn't happen at the trial court level, attorneys could appeal any death sentence.

In the March 1 memo obtained by McClatchy, Mohammed's lawyers write that MRI scans conducted at Guantánamo on Jan. 31 were flawed, and missing 75 percent of the data their experts sought. But the limited data shows "evidence of head injuries consistent with the physical trauma suffered by Mr. Mohammed and documented in the SSCI Executive Summary," the so-called torture report produced by the Senate intelligence committee in 2014 that condemned the spy agency's Black Site program.

In this sketch by courtroom artist Janet Hamlin and approved for release by a Pentagon contractor, Khalid Sheik Mohammed, with his gray beard streaked with reddish-orange dye, attends an Aug. 19, 2013 pretrial hearing at the U.S. Navy Base in Guantánamo Bay, Cuba. JANET HAMLIN AP

Mohammed was captured in Pakistan in March 2003 and kept in the CIA's clandestine overseas prison network until his September 2006 transfer to Guantánamo. The CIA waterboarded him 183 times, depriving him of oxygen and nearly drowning him. His head was bashed into walls between interrogations, according to the Senate report on the agency's "enhanced interrogation techniques" that some experts argue can cause brain damage and have since been banned.

His lawyers ask in the memo that the Pentagon pay for another, more complete study. The Pentagon refused because time ran out on the four-month lease of a mobile MRI to Guantánamo. The trial judge, Army Col. James L. Pohl, has agreed to hear an emergency motion at this week's pretrial hearing to reconsider whether to block return of MRI to the United States.

None of the MRI-related filings have been released by the court. But Mohammed's military attorney, Marine Lt. Col. Derek Poteet, said Sunday that more studies are necessary because ​"the preliminary results indicate significant injury consistent with closed head trauma."

He declined to identify the experts who studied the scans, or speak to other specifics in the defense request for MRI studies. "Unfortunately most of the test results were not useable," Poteet said. "The useable results do show the need for the studies we originally requested, and perhaps additional scans. "

A Pentagon spokeswoman, Navy Cmdr. Sarah Higgins, said Sunday that the prosecution "declined to speculate" on whether proof of brain damage would cause prosecutors to abandon their pursuit of the death-penalty for a 9/11 defendant. Nor would prosecutors reply to a question of whether, in the instance of brain damage, a decision to drop a capital case could be made by the prosecution, judge or the jury made up of U.S. military officers.

The Sept. 11 case has been in pretrial hearings since 2012. No trial date has been set, and no jury of U.S. military officers has been selected in part because of the accused terrorists' years in CIA custody.

After their capture in Pakistan in 2002 and 2003, the spy agency held the five men incommunicado in overseas prisons where agents kept them naked or in diapers, shivering or sweating, deprived them of sleep and manipulated their diets to try to get them to spill al-Qaida secrets — techniques that the Senate torture report mostly described as ineffective.

CIA contract psychologists confined some captives in kennel- or coffin-sized boxes or wrapped their necks in towels, to prevent spine injury, then slammed their heads into an interrogation room wall to gain their compliance in a technique called "walling. "

Lawyers on both sides have spent years litigating how much top secret evidence the accused terrorists' Pentagon-paid lawyers can get. Defense attorneys want precise details and access to interrogators, guards and medical professionals who worked in the CIA's secret prisons to discredit some confessions as the fruit of torture. Then, if they are convicted of conspiring in the worst terror attack on U.S. soil, the lawyers want to be able to argue that their odyssey through the black sites strips the United States of the moral authority to execute them.

On Monday, Mohammed sat silently in court in a white tunic and trousers with a burgundy colored tribal cap worn by Baluchis like himself atop his head, his beard more rusty than orange.

No mention was made of the MRI. The hearing was dominated by defense attorneys protesting government restrictions on their ability to ask eyewitnesses about what went on in the Black Sites.

Prosecutor Jeffrey Groharing argued that the defense lawyers' top secret clearances allow them to talk to the accused terrorists about what happened to them in CIA custody. But they cannot interview CIA guards, medical staff or most interrogators without government permission.

Prosecutors have made 25 exceptions, to include a psychologist who conducted the waterboarding and some senior CIA leaders who had a role in the program that involved "enhanced interrogations." An exception was also made for former National Clandestine Service director Jose Rodriguez, but not President Donald J. Trump's nominee for CIA director, Gina Haspel, who at one point ran a black site prison and with Rodriguez destroyed videotapes of interrogations despite a court protective order.

Rather than name black site workers, the prosecutors identified them with alphanumeric characters — and said they can never know their true names. Groharing said in court that, to do otherwise, would endanger national security and could put the lives of the former CIA Black Site workers at risk.

Mohammed's attorney, David Nevin, said defense attorneys are ethically and professionally obliged to conduct independent investigations and obtain a thorough description of "the torture that was imposed on Mr. Mohammed" for use at all phases of a trial. That would include asking the judge to suppress confessions, perhaps as the fruit of torture; to ask the judge to dismiss the case entirely, for outrageous government conduct or, if convicted, to convince the military jurors not to order his execution.

The Pentagon brought the mobile MRI machine to Guantánamo last year after another judge agreed to a study of the brain of a captive in the USS Cole bombing case.

Abd al Rahim al Nashiri is accused of orchestrating al-Qaida's suicide bombing of the warship that killed 17 U.S. sailors on Oct. 12, 2000 in the port of Aden, Yemen. Nashiri was waterboarded by the CIA too, and his lawyers argued that evidence of brain damage could spare him a death-penalty trial.

The base has no magnetic resonance imaging equipment and Congress has forbidden the transfer to the United States of any Guantánamo detainee, not even for medical treatment.

So the military said it arranged to lease one for $370,000. It arrived by barge in October but it didn't work, because of a liquid helium leak but was ultimately repaired.

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It is not known what Nashiri's scans found, and the trial is suspended following the resignation of key defense attorneys. But, once his MRI was done, Pentagon officials permitted lawyers for other former CIA captives to conduct scans for forensic purposes.

In the case of Mohammed, his lawyers wrote in their March memo, they consulted experts and drew up a list of "important brain sequences" for a Navy MRI technician to test that might demonstrate neurological damage. Instead, they got back "only about 25 percent useful data."

So they sought more comprehensive studies "that will meet the professional standards needed for forensic purposes needed for the preparation of the defense." Then the lease on the MRI and the Navy technician's assignment to conduct the studies ran out.

In a surprise twist, McClatchy had learned that mobile MRI equipment used on Mohammed was government property.

The prison originally purchased it in 2012 for $1.65 million, along with a mobile cardiac care unit in anticipation of an aging detainee population that could not go the U.S. for medical treatment. But the prison's command headquarters, the U.S. Southern Command, decided Guantánamo didn't need the equipment. Doctors serving the base of 5,500 to 6,000 residents routinely send people needing MRIs to military facilities on the U.S. mainland, sparing the small community-style Navy hospital here the need to maintain the equipment.

So Southcom diverted it to the Fort Gordon Army base in Georgia to treat U.S. troops.

So, technically, the MRI was not leased at all. Rather, a portion of the $370,000 rental fee went to transport the mobile Siemens MRI to Guantánamo base and for installation, calibration and maintenance, notably the replacement of the liquid helium. Another portion, it is not known how much, was spent on a periodically visiting U.S. Navy technician who operated the MRI for four months — meaning one Pentagon entity paid for the flights, accommodations and meals used by another Pentagon employee.

Carol Rosenberg: , 305-376-3179@carolrosenberg