FBI Witness in Sept. 11 Case Was Present At Overseas Interrogations of Defendant in 2002

Guantanamo Naval Base, Cuba – The FBI collaborated with the CIA in its "black site" interrogations of the Sept. 11 defendants, a fourth FBI witness testified last week, by providing questions to be asked during the sessions before the five defendants arrived at Guantanamo Bay. The FBI also received intelligence reports from the CIA about the responses to those inquiries.

Pretrial hearings in the Sept. 11 case concluded for 2019 with FBI Supervisory Special Agent Michael Butsch testifying to his coordination with the CIA on interrogations that took place prior to January 2007, when the defendants arrived at Guantanamo Bay. He also testified to being present at overseas interrogations of Sept. 11 defendant Ramzi bin al Shibh in 2002, disclosing a new level of coordination between the agencies.

Interagency coordination is a core focus of defense efforts seeking to suppress incriminating statements their clients made to FBI agents at Guantanamo Bay in January 2007, following the previous abuse inflicted by the CIA at black sites. Suppression hearings will take up significant parts of pretrial sessions scheduled for 2020, with testimony expected from additional FBI witnesses as well as the CIA contractors who created the controversial interrogation program.

Unlike the first three FBI witnesses in recent weeks – who testified that they did not have direct access to detainees at foreign sites – Butsch testified on Thursday that he was present at a secret overseas site in 2002 to observe the questioning of bin al Shibh, the first of the five defendants captured in Pakistan. (The remaining four defendants were captured in Pakistan the following year.)

In his cross-examination, defense attorney James Connell elicited the mere outlines of Butsch’s recollections of the events; the government has invoked the national security privilege on most details related to the overseas interrogation sites, including the locations as well as the personnel and foreign governments involved. Connell had many more questions planed for the classified session scheduled for late Friday.

Throughout Thursday afternoon, Connell spent less time questioning Butsch than he did huddling with prosecutor Clay Trivett and other members of the government team to hash out what could be revealed in an open session.

Butsch could not name the entity in control of the building where he attended the interrogation nor the country where it was located – only referred to as “Location #5.” Answering mostly “yes” or “no” questions asked by Connell, Butsch testified that he met people at the building, gave them information, then observed the questioning of bin al Shibh from a room in “close proximity” to the debriefing room. The questioning of bin al Shibh lasted multiple days, Butsch testified. He said that he took notes from the sessions that were the basis for cables sent to the FBI.

On Friday morning during additional cross-examination, Butsch testified that he did not consider the building in “Location #5” a black site.

“What makes a site a black site?” Connell asked.

“I don’t know,” Butsch responded. “That’s a good question.”

The agent testified that he did not believe FBI personnel were allowed at black sites, though he was allowed to be at the building in "Location #5." He added that his understanding was that “enhanced interrogation techniques” were used at CIA black sites, and he did not observe any during the bin al Shibh sessions. However, under questioning by Connell, Butsch confirmed that he returned to his hotel in “Location #5” after the afternoon sessions and did not know what transpired overnight.

The prosecution called Butsch as a witness on Wednesday and Thursday to support its contention that the statements made by the defendants to the FBI at Guantanamo Bay in January 2007 were voluntary. Butsch was the FBI special agent in charge after the attacks of investigating bin al Shibh’s role in the 9/11 plot, and then later conducted the interviews of bin al Shibh at Guantanamo Bay in early 2007, about four months after he was transferred from CIA custody.

Under direct examination by Trivett, Butsch testified to the guidelines the FBI provided to agents conducting the January 2007 sessions. The detainees were neither read Miranda rights nor given access to attorneys, Butsch said. Instead, they were promised – regardless of their decision to participate in the new interviews – that they would not be returned to CIA custody. Under the guidance, Butsch also told bin al Shibh that his interview environment might look familiar to him. (The government has previously declassified that bin al Shibh and defendant Mustafa al Hawsawi spent time at the same location on Guantanamo Bay when the CIA operated it as a black site between 2003 and 2004.)

Butsch testified that bin al Shibh voluntarily participated for several hours on the first interview day and that he appeared on the second day before stopping the interview after about 20 minutes. Butsch said that he established rapport with bin al Shibh by expressing respect for the manner in which he and his accomplices carried out the Sept. 11 attacks.

“They carried it out flawlessly,” Butsch testified, adding that he also told bin al Shibh he disagreed with the operation.

Prior to the interviews, bin al Shibh was in an altercation with the guard force and broke a security camera in his cell, Butsch said. Despite that, bin al Shibh did not exhibit any fear or duress during the interviews, Butsch testified.

“He seemed proud of his role in the attacks,” Butsch said. The agent said that he did not recall reviewing statements from the CIA black sites when he prepared for the January 2007 sessions.

Connell, who represents defendant Ammar al Baluchi, has played a central role in the suppression hearings because his team was the first to file its motion and list of witnesses he wanted to call. FBI witnesses disclosed under questioning by Connell last week and in the September session that they sent questions to the CIA to ask the detainees at the black sites. They also acknowledged that the agency responded with intelligence reports gathered in part as a result of those queries.

Butsch confirmed this week that he participated in the same interagency information sharing after leaving “Location #5” by submitting questions to the CIA. As did the other three FBI witnesses, Butsch testified that he accessed a secure CIA database that contained information from the black sites before the January 2007 interrogation sessions at Guantanamo.

James Harrington, the lead defense attorney for bin al Shibh, also cross-examined Butsch over the course of two hours Friday as this two-week session neared its end. Harrington sought information on the agent's knowledge about bin al Shibh's mental and physical condition at the time of the interviews and what was earlier done to him at the black sites. Butsch expressed almost total ignorance as to bin al Shibh's condition and the specific "enhanced" techniques used by the CIA.

Butsch testified that he did not know bin al Shibh had been prescribed a cocktail of Haldol, Ativan and Benadryl and had recently been on “self-harm watch” at the detention camp prior to the January 2007  sessions. He also did not know that bin al Shibh’s hair and beard had been forcibly shaved off a week before the interviews, and that this was also done at the black sites.

Butsch testified that he did not read the Senate’s summary report of the CIA interrogation program, and that he could not recall following any of the significant news coverage after the summary was released in December 2014.

Harrington asked Butsch if he believed interviewing bin al Shibh in the same interrogation room he had earlier suffered abuse would constitute “re-traumatization.” Butsch said he did not recall being aware during the January 2007 interview that they took place in the same location within the detention facility previously used by the CIA.

“If we interviewed him in the same location, it could be,” Butsch allowed.

Harrington then asked whether Butsch had known about the various  techniques used on bin al Shibh at the black sites, including long periods of light, darkness, cold temperatures, loud music, sleep deprivation, stress positions and nudity; water-dousing along with threats of waterboarding; threats of rectal hydration; being put on a liquid diet; and slapping and being slammed into a wall.

Butsch said he had not known of the prior techniques used. The FBI agent also testified that he was unaware that bin al Shibh’s CIA captors told him that the "techniques" would be stopped if he gave the right answers to their questions.

James Mitchell and Bruce Jessen, the CIA contractors who devised the interrogation program, are expected to testify at the next session scheduled for Jan. 20-31.

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. View our staff page.