Judge on 9/11 Case Signals Willingness to Rule on Suppression Dispute

Guantanamo Naval Base, Cuba – Following more than three weeks of FBI witness testimony and oral arguments related to the interrogations of the men accused of plotting the 9/11 attacks, Air Force Col. Matthew McCall – the fourth judge to preside over pretrial hearings in the case – ordered defense teams to file updated motions in support of their arguments to suppress those statements.

In particular, he pointed to witness testimony and other discovery that has become part of the case's massive record since Sept. 2019, when hearings to suppress the government's intended use of those statements began. McCall also ordered updated briefing on the effects of investigative restrictions the government imposed on the defense teams six years ago. He ordered the government to update its proposed stipulations of fact about the CIA's treatment of the defendants during their time in the agency's Rendition, Interrogation and Detention (RDI) program. 

With the initial filings due in November and December, McCall could be in a position to issue a ruling of significant consequence before a four-week hearing set to begin Feb. 12, 2024.

Over the past month, McCall began to chip away at the witness testimony that will factor into the critical decision he – or his successor – makes on whether to suppress confessions made by the four remaining defendants charged with orchestrating the Sept. 11 attacks.

The suppression hearings began more than four years ago before the pandemic took hold. Rekindled, they have yet to establish a clear course for the remaining pretrial litigation or reveal the fate of some of the government’s most important evidence in the case.

This week was the final week of a month-long hearing, the longest stretch for the jurisprudence of this matter. In court, defense lawyers and prosecutors differed sharply on whether Judge McCall could rule on the suppression disputes prior to his retirement next April

On Tuesday, lawyers from three of the defense teams argued to McCall that he could suppress statements their clients made to FBI agents on Guantanamo Bay in early 2007, about four months after they arrived from CIA black sites – despite the fact that defense counsel have not finished presenting their cases to suppress those statements. Defense lawyers contended that McCall could make the finding either because the prosecution had failed to demonstrate that the statements made to the FBI were voluntary, or as a sanction against the government for its restrictions on defense teams’ efforts to investigate the past torture of their clients.

The prosecution's managing trial counsel, Clay Trivett, argued a different perspective – telling McCall that he saw “no scenario” in which the judge could rule on suppression before he yielded the bench to a fifth presider in April. The government has the burden to establish the voluntariness of the defendants’ statements, and McCall must allow the prosecution to present its full case, Trivett argued.

“We are certainly permitted to prove the case we need to prove,” Trivett said.

The prosecution may want to add witnesses to the government's existing list to bolster its case in light of a suppression ruling in a separate military commission, Trivett added. In August, Army Col. Lanny Acosta suppressed the confessions made by Abd al Rahim al Nashiri as involuntary because of his past torture by the CIA. The prosecution in that case appealed the decision to the Court of Military Commission Review.

Trivett argued that McCall or any future judge should wait until al Nashiri's appeal is settled because the decision will be “binding case law” on the lower trial court.

The exchanges this week marked something of a role reversal for the opposing sides of the Guantanamo Bay courtroom. Prosecutors have generally worked to streamline the proceedings, and have only agreed to produce a small set of witnesses sought by the defense teams. Defense lawyers, meanwhile, have moved forward with their suppression cases on the grounds that they would be able to argue for additional witnesses down the road. Defense lawyers are seeking testimony from more than 100 witnesses, including dozens of covert CIA personnel who participated in the black site program. [Related: With Key FBI Witness, 9/11 Case Returns to Suppression Hearings of Historic Complexity.]

Gary Sowards, the lead lawyer for Khalid Shaikh Mohammad, argued on Tuesday that Trivett had it wrong – that the judge could, in fact, rule on suppression prior to his retirement. Sowards argued that suppressing the statements would “point a way forward” and move the case more quickly towards a trial. If the statements remained “unsuppressed,” Sowards continued, then the defense teams would be entitled to elicit testimony from many eyewitnesses from “within the torture chambers.”

So far, the parties have only examined – in full or in part – about half the 28 witnesses the government intended to call for the suppression hearing. Another complication is that the each of the suppression cases for the defendants is moving forward on a somewhat different track. Nevertheless, McCall indicated that he could issue a suppression ruling, though not without additional briefing.

“I’m not there yet,” McCall told the parties on Tuesday.  

Throughout the week, the judge indicated that limitations on the defense teams' presentations of their suppression cases would factor into any decision he makes regarding the best way forward in the litigation. In late 2017, the government prohibited the defense teams from independently contacting former or current CIA employees or contractors associated with the RDI program. Defense attorneys claimed that the restrictions were an unconstitutional prohibition on their ethical duty to prepare their defense. Prosecutors argued the protocols outlined in what became known as “Protective Order #4” balanced due process with national security and allowed defense teams to request CIA witnesses through the government.

Trivett defended Protective Order #4 again on Tuesday, contending it was the best way to facilitate contact with covert agents who also had non-disclosure agreements with the CIA. James Connell, the lead lawyer for Ammar al Baluchi, said that Trivett’s portrayal of the protocols was “empirically untrue” and that the restrictions had an “apocalyptic impact” on defense teams.

The first judge on the case, Army Col. James Pohl, preemptively suppressed the FBI statements in August 2018 – before the teams even filed their suppression motions – as a sanction against the government for its investigative restrictions. The second judge, Marine Col. Keith Parrella, reinstated the statements in April 2019 and ordered the defense teams to file suppression motions. Parrella stated that Pohl’s “remedy may ultimately prove appropriate” if the restrictions on the defense teams proved too burdensome once suppression hearings began.

Parrella’s ruling queued up what defense teams assailed as a “test run” of a suppression hearing before Air Force Col. Shane Cohen, the case’s third judge, who began hearing witness testimony in September 2019.

Throughout the suppression proceedings, the prosecution has invoked the national security privilege to prevent defense lawyers from either eliciting witness testimony or presenting oral arguments on certain categories of information. At several points during these September-October hearings, the prosecution asked the court security officer to trigger the red “hockey light” that interrupts the audio and video feed to the viewing gallery to prevent the spill of classified or other allegedly protected information. McCall has acknowledged that he shares the defense teams’ concerns over the security interruptions. He also repeatedly pointed out the procedural oddity of hearing witness testimony for suppression cases while the parties were still litigating over relevant discovery. 

On Monday, Walter Ruiz, the lead lawyer for Mustafa al Hawsawi, argued that Parrella's 2019 order forcing the defense teams to file their initial suppression motions was not only “prejudicial” but also “unlawful.” He said the hearings thus far had shown that Pohl was right – that a fair hearing is impossible.

“We have been decisively proved correct,” said Ruiz, who repeatedly described the attempt at suppression hearings as “a fool’s errand.”

“It’s a fool’s errand that has consumed time and energy,” he added.

For now, McCall plans to continue the suppression hearings for a two-week session beginning Nov. 6, which will provide the defense teams and the prosecution with additional material for their filing updates due in December. On Wednesday afternoon, he asked Trivett to provide updates on the witnesses – most of them current or former FBI personnel – who may be available.

“If they are just busy with work or something, this takes precedence,” McCall said.

Trivett reiterated the government’s position that McCall and his successor would have to finish with the initial 28 witnesses before giving the parties the opportunity to present oral argument on whether Protective Order #4 unfairly burdened the defense teams. He said that because of McCall's pending retirement, the government had concerns about him hearing testimony from critical witnesses for whom a different judge would have to make credibility assessments.

“That ship has sailed,” McCall responded. He added that – to address such a concern – the government would need to recall all the prior witnesses once the new judge is seated.

“I want to see where we can push and what we can accomplish,” McCall said.

McCall inherited the 9/11 case in September 2021, after more than 500 days of delays caused by the Covid-19 pandemic. He used that first hearing and one in November that year to hear oral arguments on pending motions instead of resuming witness testimony for the suppression hearings. He cancelled a scheduled January 2022 session due to the spike in Omicron infections. Then, in March 2022, McCall held off a resumption of hearings because the prosecution and defense teams entered into plea negotiations that would have removed the death penalty as sentencing options for the five detainees accused of planning or facilitating the 9/11 terrorist attack.

McCall finally decided to hold the current hearing – the first-ever four week session in the case’s 11 years of pretrial litigation – after the Biden administration declined to sign off on the terms of the proposed plea deals. During the first week, on Sept. 21, McCall severed one of the defendants, Ramzi bin al Shibh, from the case after finding he is mentally incompetent. The remaining three weeks have offered up a hodgepodge of witness testimony and oral arguments on an array of pending motions, most of them having to do with discovery disputes and others seeking dismissal of the case or certain of its charges on constitutional grounds.

On Wednesday, McCall told the parties that he first needed to “get the data” from the updated defense and prosecution filings before determining the way forward on the suppression disputes.

“I think everyone has their marching orders,” McCall said.

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case.  His book on the 9/11 case is scheduled for publication in March 2024.