Critical Suppression Hearing Resumes in Guantanamo’s USS Cole Bombing Case

Guantanamo Naval Base, Cuba – Lawyers for the detainee accused of planning the USS Cole bombing continued their push this week to exclude the confessions their client made at the detention facility here more than 15 years ago.

The government intends to use at trial the interrogations of Abd al Rahim al Nashiri by agents of the FBI and Naval Criminal Investigative Service (NCIS) in early 2007, contending they are “clean” of the abuse inflicted earlier on the defendant at CIA black sites.

Al Nashiri’s team contends that the incriminating statements are tainted by his past torture at the hands of the CIA, as well as by the coordination between the CIA and the law enforcement agents who conducted the interrogations on Guantanamo Bay.

One of al Nashiri’s civilian lawyers, Katie Carmon, called former NCIS Special Agent Robert McFadden as a witness on Tuesday to draw out elements of the coordination. McFadden, a lead agent on the USS Cole investigation, participated in the interrogations of al Nashiri over three days on Guantanamo Bay starting on Jan. 31, 2007.  Stephen Gaudin, the FBI Special Agent who led the interrogations, is scheduled to testify in week three of this hearing. Both agents were part of a multiagency prosecution task force established to build criminal cases against some of the 14 high-value detainees transferred to Guantanamo Bay in September 2006 from the CIA black sites.

McFadden testified on Tuesday that he sought and was denied access to al Nashiri by the CIA when the detainee was in the agency’s custody from 2002 and 2006.  He acknowledged accessing information from the CIA interrogations at a classified facility in Northern Virginia prior to traveling to Guantanamo Bay in 2007 to question al Nashiri for the purposes of obtaining statements that would be admissible in a military commission.

“I had access to those intelligence products,” McFadden said.

McFadden said he knew that al Nashiri was one of the detainees that the CIA held on Guantanamo Bay when the agency ran at least one portion of the detention facility as a black site between 2003 and 2004. McFadden said the agents told al Nashiri that his surroundings might look familiar to him but that he would not be returned to CIA custody, regardless of his willingness to answer questions.

McFadden said that the memorandum of the interviews had to be typed on a CIA laptop and that the agency had a chance to review and edit the material, though he did not recall the specifics of how that process took place. Any allegations by al Nashiri of past abuse by the CIA had to be recorded separately, McFadden testified. He also did not recall whether this was done in al Nashiri’s interrogations. (However, the FBI linguist who was in the room as an interpreter for the sessions, John Elkaliouby, testified on Thursday that al Nashiri said he discussed his torture, including waterboarding, with his interrogators.)

Under cross-examination by the lead prosecutor, Mark Miller of the Justice Department, McFadden said he used a rapport-based approach with al Nashiri as he had in hundreds of other investigations in his long career in Naval law enforcement. McFadden said that, in preparing for the sessions, he relied more on his and other agents’ investigative work after the October 2000 attack than on any intelligence produced by the CIA black site program. McFadden said his investigation on the ground in Yemen led him to conclude relatively quickly that al Nashiri was the lead planner.

The judge, Army Col. Lanny Acosta, asked McFadden at the end of his testimony if he referred to CIA statements when questioning al Nashiri.

“No, sir,” McFadden responded.

Al Nashiri faces the death penalty for his alleged role in the attack that killed 17 sailors and wounded dozens of others off the coast of Yemen. A trial date is not yet set for his military commission, which dates to the November 2011 arraignment. In a pre-hearing meeting with reporters who travelled to attend the proceedings, members of his legal team portrayed the suppression hearing as an important step to finally seeing a trial date begin to appear on the horizon.

Last month, al Nashiri’s team called as a witness Dr. James Mitchell, an architect of the CIA interrogation program who personally waterboarded al Nashiri as part of a series of “enhanced interrogation techniques” that defense lawyers and other critics have said constitute torture in clear violation of domestic and international law. Dr. Bruce Jessen, Mitchell’s fellow psychologist and partner in running the program, is expected to testify later this year. Defense lawyers contend that the CIA conditioned al Nashiri through torture and isolation to give answers his interrogators wanted, rendering any subsequent statements involuntary.

Al Nashiri’s lawyers intended to call a consultant to the team, Dr. Sondra Crosby, to testify about the effects of his past torture on Friday. However, an individual from the courtroom staff tested positive for Covid-19 on Thursday, leading Judge Acosta to cancel Friday’s session, according to a spokesperson for the military commissions. (The schedule for the remaining two weeks of the session was not entirely clear as a result of this development.)

Prosecutors used the witnesses this week, starting with McFadden, to portray the Guantanamo interrogations as voluntary and al Nashiri as being in sound physical and mental shape during the early 2007 time period. Elkaliouby, the linguist who said al Nashiri recalled his torture during the 2007 sessions, testified on Thursday that the detainee appeared healthy and “spoke normally.” 

“He was happy to be in the room,” Elkaliouby said.

The defense team’s work to also establish a taint of the confessions through CIA-FBI coordination mirrors similar efforts by the defense teams in the separate military commission against the five detainees accused of planning the Sept. 11 attacks. In that case, multiple FBI witnesses testified they sent questions to the CIA – referred to as “intelligence requirements” – for personnel to ask detainees held at black sites prior to their transfer to Guantanamo Bay. During suppression hearings in that case, three of the agents who  interrogated 9/11 suspects on Guantanamo Bay during January and February of 2007 acknowledged visiting the CIA facility in Virginia to review information elicited at the black sites prior to arriving here for the interrogations. Like McFadden, they tended to minimize the extent to which they relied on CIA information when preparing for the interrogations to be used in any future criminal cases.

That suppression hearing has been on hold since the parties began plea negotiations. (One of the five defense teams’ new lead lawyer is also awaiting a security clearance.) As part of the discovery process in the 9/11 case, the government has provided dozens of the intelligence requirements that FBI agents sent the CIA while the suspects were held at the black sites. Prosecutors told Acosta this week that they were working to provide similar discovery to al Nashiri’s lawyers.

Al Nashiri’s team is also challenging the admissibility of more than 100 hearsay statements the government hopes to use at trial related to investigative work conducted overseas, mostly in Yemen. On Thursday, former FBI agent Andre Khoury testified about statements he took from Yemeni witnesses in the months after the USS Cole attack that tended to implicate al Nashiri. That testimony was scheduled to continue Friday before the Covid-19 postponement.

Conflict Issue Complicates al Nashiri Defense

The government’s desire to also use hearsay statements by former Guantanamo Bay detainee Salim Hamdan has led to a request by al Nashiri’s lead military defense lawyer, Navy Capt. Brian Mizer, to withdraw from the case. Mizer represented Hamdan during his military commission and appeal, which in 2012 ended with the D.C. Circuit Court of Appeals overturning Hamdan’s conviction after he had been returned to Yemen. During Hamdan’s interrogations on Guantanamo Bay in 2007, he implicated al Nashiri in the USS Cole plot and in ties to Osama bin Laden.

At the start of this session on Monday morning, Judge Acosta asked Mizer why he was moving to withdraw now, given that prosecutors told the al Nashiri team back in September 2013 that it intended to use the Hamdan statements. Mizer said that he viewed the conflict as “speculative” until the parties began litigating the hearsay statements – which was just beginning this week.

“It is my view that we are now proceeding with conflicted counsel and that I've carried the ball as far as I can carry it, Judge,” Mizer said. “And I've thrown the flag, not lightly, knowing what I know, where I can't do it any longer.”

Annie Morgan, a civilian lawyer on the team, told Acosta that the entire team was operating under a conflict.

“We are playing with fire here,” Morgan said.

After a recess, Acosta denied Mizer’s request and told the parties that he would not take up the admissibility of the Hamdan statements until at least February 2023, which he said would allow Mizer to continue to operate conflict-free as the judge more fully explored the matter. Former NCIS Agent McFadden’s testimony soon added another wrinkle, however, as prosecutor Miller elicited from the witness on Tuesday information about the Hamdan statements related to McFadden's efforts to build a case against al Nashiri. Acosta indicated that he intended to revisit the potential conflict issue in week two of the hearing.

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 military commissions. View our staff page.