Lawyers Elicit Competing Views of Hearsay Evidence in USS Cole Bombing Case

Guantanamo Naval Base, Cuba – Lawyers in the USS Cole bombing case resumed their high-stakes battle last week over the admissibility of more than 100 hearsay statements taken by U.S. investigators working in Yemen in the years after the October 2000 attack.

At the center of the dispute for the final hearing of 2022 was former FBI Special Agent Andre Khoury, who interviewed dozens of Yemeni witnesses relevant to the military commission against Abd al Rahim al Nashiri. Prosecutors called Khoury to support their contention that the statements are reliable in lieu of the actual witnesses who are no longer available from Yemen. Al Nashiri faces a possible death sentence for his alleged role in planning the attack that killed 17 sailors and injured dozens of others.

Under direct examination by one of the prosecutors, Navy Lt. Cmdr. Keven Schreiber, Khoury said that the witnesses participated willingly in the interviews in Yemen and did not appear to be exhibiting signs of abuse or fear.

However, he told Joaquin Padilla, a civilian lawyer on al Nashiri’s team, that he did not know if Yemeni agents threatened the witnesses or used other coercive means to secure their participation. Khoury testified in detail about investigative limitations imposed by an agreement between American and Yemeni officials under which the country’s Political Security Organization, or PSO, located and provided all witnesses for interviews at PSO headquarters in Aden. PSO agents stayed in the room for all the interviews, and U.S. investigators did not have the freedom to independently conduct follow-ups.

“That’s not how we operate in the United States, of course,” Khoury told Padilla on Wednesday.

Khoury testified for three days from the court’s remote hearing room in Northern Virginia. Schreiber and Padilla also conducted their examinations from the remote facility.

Khoury, who is now a vice president with The Souffan Group, first testified about the statements in late July. Additional law enforcement agents testified during the October session about their interviews of Yemeni witnesses. The next session for al Nashiri’s military commission is scheduled to last two weeks, commencing Feb. 20.  

The judge, Army Col. Lanny Acosta, will eventually rule on the admissibility of each statement once witness testimony is complete and he receives final pleadings from the parties. He has not yet set a trial date for the case, which dates to al Nashiri's November 2011 arraignment.

The 2009 law that established the military commissions allows for a judge to admit hearsay evidence after considering its reliability and degree of corroboration. Under the law, the judge must determine that a witness is unavailable and that inclusion of the statement serves the interests of justice. Most of the Yemeni witnesses either saw the attack or provided information about the planning phase that contributed to federal agents identifying al Nashiri as a lead orchestrator. The prosecution has the burden of demonstrating the reliability of these statements.

Probing their reliability has been painstaking and often repetitive. For each witness interviewed in Yemen, Schreiber, the prosecutor, established with Khoury that it took place at PSO headquarters and began with a Yemeni agent reading any prior statement given to the PSO by the witness. Khoury also confirmed that each witness appeared healthy and that his team was able to pursue any line of questioning without interference.

On cross examination for each statement, Padilla elicited from Khoury that he did not know the details of the witnesses’ prior treatment or if they were in PSO custody at the time. Khoury said his team did not know the circumstances of any of the prior statements given by the witnesses to Yemeni agents.

Khoury said his team did not take any steps to independently confirm the identity of witnesses provided by the PSO, such as taking fingerprints or asking for identification documents. Agents also did not collect any contact information for the witnesses to assist in locating them later, Khoury testified. He said he had no knowledge of what the U.S. government has done to attempt to locate Yemeni witnesses for al Nashiri’s case.

Khoury told Padilla he would not have been able to independently recall the names or relevant roles of the witnesses if he had not reviewed his write-ups of the interviews in preparation for his testimony.

“It has been such a long time,” Khoury said Wednesday.

He spent much of his testimony between Wednesday and Friday reviewing the interview write-ups provided to him intermittently by Schreiber and Padilla.

Khoury was born in Lebanon and spent his formative years there before moving to the United States. He was an agent in the FBI’s Boston office at the time of the USS Cole attack; he traveled to Yemen a few weeks later. In various parts of his testimony, Khoury portrayed his upbringing and Arabic proficiency as extremely helpful in conducting the investigation in Yemen. Among many other complications, he said his team learned that some senior agents of the PSO had terrorist sympathies and ties to al Qaeda.

During parts of Schreiber’s redirect examinations on Thursday, Khoury said that he was confident that his team’s investigation was thorough and that the statements accurately documented the interviews at PSO headquarters. He said he knew at the time in Yemen that the statements had to be useful for many reasons, including a possible criminal case.

“Even 22 years later?” Schreiber asked.

“Yes, of course,” Khoury testified.  

In another round of redirect Friday afternoon, Khoury acknowledged that the investigation was not as “diligent” as any that might take place in the United States. He said speed was essential to conducting a complex investigation in a sovereign nation that could end his work at any time. He also said that the "threat level" in Yemen was high.

“We didn’t really know what was going to happen the next day,” Khoury told Schreiber.

Khoury did not finish his testimony last week and will likely continue it in the session starting in February. 

Acosta has another complex area of pretrial litigation pending before him. Al Nashiri’s team, led by Anthony Natale, is also challenging the government’s plan to use incriminating statements al Nashiri made to FBI agents on Guantanamo Bay in early 2007, after his transfer from CIA black sites. Hearings over the defense's motion to suppress these statements are also expected to consume a significant amount of court time next year.

Lawyers claim these confessions are tainted by the CIA’s past torture of al Nashiri, as well as by coordination between the FBI and the CIA in conducting interrogations. Prosecutors contend al Nashiri gave the 2007 statements voluntarily.

Earlier this year, the lead architect of the CIA’s interrogation program, Dr. James Mitchell, testified about waterboarding al Nashiri and inflicting other abuse on the detainee during his years at CIA black sites. The defense team will call Mitchell’s partner in the CIA program, Dr. Bruce Jessen, as a witness at some point in 2023. Annie Morgan, another civilian lawyer for al Nashiri, told reporters last week that the team is still seeking additional discovery critical to the suppression hearing. Morgan also said that recently provided discovery has led the team to identify dozens of additional potential witnesses.

This one-week hearing was the last military commission proceeding of the year. The next on the calendar is a three-week hearing scheduled to start Jan. 16 in the military commission against the five Guantanamo detainees accused of planning the 9/11 attacks. That case has mostly been on hold since March 2022, when the government and five defense teams began plea negotiations. In cancelling the session scheduled for last month, the judge, Air Force Col. Matthew McCall, noted that key parts of proposed plea deals were still under consideration by Biden administration officials.

In a separate military commission, Abd al Hadi al Iraqi pleaded guilty earlier this year to war crimes over his role in the war in Afghanistan in 2003 and 2004. A hearing in that case is set for Feb. 13-17, though his ability to participate could hinge on his recuperation from his most recent back surgery. The newest military commission involves charges against detainees Encep Nurjaman, Mohammed Nazir bin Lep and Mohammed Farik bin Amin, who face life sentences for their alleged roles in terrorist bombings in Bali and Jakarta. That case has not had a pretrial hearing since the August arraignment; one is scheduled to start in late April.

The commissions system on Guantanamo Bay is likely getting a second courtroom in 2023, located in a new structure that has been built adjacent to the current court.  A spokesperson for the commissions said that the new court, which cost about $4 million, will be available in 2023 but the exact date is to be determined.

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.