As Witness Health Issues Mount, Judge Considers Compelling Testimony of Covert CIA Officer

Defense attorney Alka Pradhan argued that the judge should compel the testimony of a covert officer from the CIA black sites.

Guantanamo Naval Base, Cuba – Nearly 16 years after the prosecution of those accused of planning the Sept. 11 attacks commenced, the logistical challenges of completing that effort remain inescapably apparent on Guantanamo Bay.

The cadre that reassembled here last week – large prosecution and defense teams, judicial and court staff, media, nongovernmental observers and victim family members – anticipated the court's lengthiest hearing session, five weeks driven by the judge, Air Force Col. Matthew McCall. He is pursuing an aggressive pace, termed "crushing" by the lead prosecutor, in hopes he will be able to rule by year's end on the admissibility of statements by the accused after they arrived on Guantanamo in 2007 following their detention at CIA black sites.

Before the end of the first week, however, witness health issues had thwarted hopes of swift progress. The Army commander responsible for the detention of the four 9/11 defendants and other high-value detainees at Guantanamo in 2007 was expected to testify in the session's fifth week. However, prosecutors reported he is now experiencing unspecified medical issues and is unavailable.

In addition, the witness slated to testify throughout all of this coming week – FBI Special Agent Stephen Gaudin – has also become unavailable due to an illness, lead prosecutor Clay Trivett told the court Thursday.

“He could barely talk last night,” Trivett informed McCall.

“I’m a bit frustrated,” McCall responded, adding that the government typically has a more comprehensive witness list “locked and loaded” in courts martial.

“We need to make sure we have extra people in the queue,” McCall said. Health issues with a docket of aging witnesses will only get worse with time, he added.

Twice, already, the judge has extended his retirement in hopes he will be able to complete the suppression hearings. It is the most important chapter to date – centering on efforts by defense counsel to exclude from evidence their clients’ 2007 confessions on Guantanamo Bay following years of abusive treatment and incommunicado detention at CIA black sites. As one of the FBI agents who took what the government claims are "clean" statements on Guantanamo, Gaudin was expected to render valuable insight into their symmetry with prior interrogations.

The mounting tally of health-related issues also extends to Dr. Bruce Jessen, who helped design the CIA’s interrogation strategies, and is considered a key defense witness. The testimony of Jessen, who first took the stand in January 2020, was delayed before the last session for health reasons, though prosecutors said this week that he may become available for the next month-long session, scheduled to begin in mid-July.

McCall plans to conclude the pivotal suppression testimony before November – the last date by which he hopes to hold final oral arguments on whether any statements made by the defendants on Guantanamo can be admitted. A parting ruling against the prosecution by McCall could trigger an appeal, which would delay the case by several months, or more. In a separate death penalty commission, the government appealed the suppression ruling that sided with Abd al Rahim al Nashiri, who is accused of a leadership role in the October 2000 USS Cole bombing. A military judge in that case ruled last August that al Nashiri's January 2007 statements were inadmissible because the CIA had "intentionally and literally beaten out of him" his ability to avoid incriminating himself.

McCall's predecessor on the 9/11 case, Air Force Col. Shane Cohen, began suppression hearings in September 2019 before resolving defense motions seeking to compel additional witnesses, many of them covert officers from the CIA black sites. The government has opposed testimony from any current or former CIA employees. Instead, it has made available both Jessen and Dr. James Mitchell, the other former contract psychologist who had a leadership role in the agency’s Rendition, Detention and Interrogation, or RDI program. Before delays caused by the pandemic, suppression hearings focused largely on FBI witnesses who participated in the attempt to get "clean" statements from the suspects on Guantanamo Bay and who had earlier coordinated with the CIA on black site interrogations.

McCall, the fourth judge to preside over hearings, resumed suppression hearings last September after a lengthy period in which the defense teams and the government sought and failed to reach plea agreements. Since then, the parties have labored diligently through the FBI-focused set of witnesses agreed to by the prosecution and defense teams. In addition to Gaudin, only a half-dozen or so planned witnesses remain, including a few more from the the FBI, a government terrorism expert and defense and prosecution medical experts.

Those witnesses, however, are far from the entire cast the defense could call depending on McCall's view of the testimony he needs to assess the Guantanamo statements' admissibility. McCall had previously hinted he would be able to rule on suppression with the agreed-upon witnesses. However, with the mounting health-triggered absences of the current witness roster, the judge this past week began weighing to compel testimony from witnesses from the CIA as well as the FBI, who have not been agreed to by the government. 

On Wednesday, at McCall's request, defense and prosecution teams gave oral arguments on taking the testimony of "SG1," a covert CIA witness – one of dozens sought by defense teams – at this session or a future one. 

Earlier testimony by Mitchell and Jessen established that their principal contact was with Khalid Shaikh Mohammad, who is accused of masterminding the 9/11 attacks. Mitchell, Jessen and a covert officer known only as NZ7 – another potential witness the government has thus far cloaked from inquiry – personally subjected Mohammad to 183 waterboardings and other “enhanced interrogation techniques.”

On Wednesday, Alka Pradhan, a lawyer for Ammar al Baluchi, argued that – if allowed to testify – SG1 could fill important gaps in the evidence. While the discovery provided by the government on the RDI program contains numerous errors and omissions, she said, SG1 is nevertheless a regular figure mentioned in the material in relation to her client.

SG1 was present in Pakistan during interrogations conducted after al Baluchi’s April 2003 capture, and before his transfer to CIA custody, Pradhan explained. A government discovery index showed that SG1 subsequently had “direct and substantial contact” with al Baluchi 11 times at CIA black sites, she said.

Pradhan also said that SG1 was copied on many cables between the CIA and the FBI as they coordinated on questions to ask various detainees during their detention at the black sites. As part of their suppression arguments, defense attorneys claim that the FBI’s practice of sending questions into the black sites – and then later reviewing this intelligence before the Guantanamo reinterrogations – undercuts government claims the 2007 statements are clean from the taint of coercion.

SG1 is "absolutely essential" for the defense of Walid bin Attash, argued one of his civilian lawyers, William Montross. The discovery index provided to his team indicated the CIA agent had direct and substantial contact with bin Attash 79 times from May to June 2003.

“That’s the period when he was being tortured,” Montross said.

The idea of moving into disputed witnesses drew push back from Army Maj. Neville Dastoor, one of the prosecutors. He urged McCall to stick with the plan he inherited from Cohen: Complete testimony from the agreed-upon witnesses before receiving additional written briefings and eventually hearing oral arguments on the potential need for additional witnesses. 

Testimony from SG1 would pose certain “practical and logistical” challenges that might require the use of a disguise or other security protocols, Dastoor added.

“We stand ready to address [those protocols] if necessary,” Dastoor argued from the courtroom’s remote hearing room in Virginia.

Dastoor repeated a refrain that dates to at least 2018 – that the government will not challenge defense portrayals of past coercions. The prosecution has proposed joint stipulations in which the government and each defense team would agree to a full written account of the defendant's course of treatment at the black sites. Dastoor claimed such joint stipulations and other documentary evidence, supplemented by the testimony of Mitchell and Jessen, would likely make SG1’s testimony unnecessary or “cumulative.”

The government and CIA have been “on notice” for at least five years that covert witnesses might be needed in court, Pradhan countered. To base any reluctance on logistical challenges to making that happen safely, she said, was “a very poor advertisement for the CIA.”

For years, defense lawyers have claimed it would be strategically unwise, if not ethically irresponsible, to enter into joint stipulations for their clients without first gaining a full understanding of all of the torture-related evidence against them. Gary Sowards, Mohammad’s lead lawyer, told McCall that the government's sincerity in reaching comprehensive and accurate stipulations was in question. Over many years of pretrial litigation, he noted, the prosecution repeatedly challenged defense-teams' characterizations of the CIA torture, including, for example, their preference to refer to the CIA's medically unsound rectal procedures as anal rape or sexual assaults. 

“Stipulations are what you offer when you don’t want to hear the evidence,” Sowards argued.

The defense teams are prohibited from independently attempting to interview CIA witnesses under a protective order – the case’s fourth governing the handling of information in the proceedings. Protective Order #4 restricts the procedure by which defense counsel can seek CIA witnesses for the suppression hearings, requiring them to request CIA witnesses identified in discovery by unique function identifiers, or UFIs, through the government. Only a handful of CIA witnesses agreed to talk with the defense teams as they prepared their suppression cases. McCall is expected to factor these restrictions and other limitations on defense suppression efforts when deciding whether to admit the 2007 statements made to FBI agents.  

On Wednesday, McCall also heard arguments whether to compel testimony of former FBI special agent Maria Jocys. She is believed to have significant knowledge of the FBI’s coordination with the CIA on black-site interrogations. McCall did not immediately rule on whether SG1 or Jocys will be required to testify.

The now-indisposed Gaudin led the interviews of bin Attash on Guantanamo in early 2007, as well as during additional rounds in 2008. He was the last scheduled FBI witness offered by the government to support claims that the sessions were voluntary. The former and current FBI agents who led the interrogations of Mohammed, al Baluchi and Mustafa al Hawsawi have previously testified in the suppression hearing. (The FBI agent who led the 2007 interviews of Ramzi bin al Shibh, whom McCall has since severed after finding him mentally incompetent, also testified.)

The corps of FBI agents testified that they used traditional “rapport-building” interview techniques with the suspects and advised them that they did not have to participate. However, the agents also acknowledged accessing a CIA system that allowed them to review evidence generated from the black sites in the months before the so-called "clean teams" arrived on Guantanamo Bay in January 2007 to get the new statements.

The testimony of FBI Supervisory Intelligence Analyst Kimberly Waltz dominated this session's first week. At the last hearing, the prosecution completed its direct examination of Waltz, much of it offered in classified sessions closed to the public and media. Defense teams completed their open cross-examination of Waltz on Thursday. Gaudin’s indisposition opened up next week, allowing McCall to deal with other matters on Friday. Waltz is expected to return next week for her closed cross-examination.

As before, Waltz testified that the interviews were cordial and voluntary, having watched many of the January 2007 sessions from a nearby observation room in the detention facility. However, she also testified that federal prosecutors would not have used the Guantanamo statements at a planned federal trial because the suspects had not been read their Miranda rights.

Waltz explained that she was part of a group that reviewed potential criminal cases in 2009 as the administration of President Barack Obama sought to determine whether certain Guantanamo detainees should be tried in civilian courts or military commissions. Waltz testified that prosecutors from U.S. attorney offices in the Southern District of New York and the Eastern District of Virginia who participated in the review process decided that – while a federal case could be brought on other evidence – the statements taken on Guantanamo Bay in 2007 would not be admissible because of the Miranda deficiencies.

The Justice Department obtained a federal grand jury indictment against the 9/11 defendants in December 2009 but did not transfer the detainees to the United States. The Obama administration referred the case back to the Guantanamo commissions after facing intense and highly publicized political opposition to holding the trial in federal court in lower Manhattan.

Questioned by Navy Lt. William Xu, a military lawyer for Mohammad, Waltz acknowledged that some FBI colleagues expressed concerns when planning for the Guantanamo interrogations, in which suspects would neither receive Miranda warnings nor have access to lawyers until after they were charged with crimes. She offered, however, that Mohammad’s January 2007 interactions with the lead FBI agent on his case, Frank Pellegrino, were filled with friendly banter.

Xu inquired if her opinion about the voluntary nature of the interviews would change had she known the CIA had previously subjected Mohammad to repeated bouts of waterboarding, walling, extended sleep deprivation and rectal violations, among other mistreatment.

“My conclusions are the same,” Waltz responded.

The government has offered Waltz's testimony to boost its assertion that the 2007 Guantanamo statements were voluntary – as well as to preadmit evidence, including intercepted phone calls between July and October of 2001 in which some of the 9/11 suspects allegedly discussed aspects of the conspiracy. (Under questioning by Montross on Tuesday, Waltz said that bin Attash was not a participant or named in any of the calls she reviewed.) 

Testimony regarding the phone calls and other evidence dragged the case back through days of open court in which defense attorneys struggled to maneuver between unclassified and prohibited information, occasionally setting off the red security light over a potential spill or moving away from the podium to engage in lengthy chats with the prosecution team to iron out what the public could hear or see. The vast majority of documents discussed in court could not be shown in the viewing gallery, which receives an audio and video feed on a 40-second delay.

As the week began, James Connell, the lead lawyer for al Baluchi, told McCall that another of the case's protective orders, Protective Order #3 – and subsequent admonitions – prevented him from probing the “provenance and reliability” of the phone-call evidence and would sharply curtail his questioning, whether in an open or closed session.

The al Baluchi team was alone in taking McCall up on his suggestion for defense teams to submit their anticipated questions for Waltz to the prosecution for prior review, to see what the government would allow and to establish a clear record of what it would prohibit. On Monday, Connell told the court that the prosecution fully or partially redacted 175 of his questions, meaning the judge himself had yet to see a complete list of what al Baluchi's defenders hoped to cover with Waltz.

Connell intermittently turned to McCall throughout his questioning of Waltz to indicate when he “would have asked” a prohibited question. In one exchange, Waltz told Connell that she did not believe the phone calls in which defendants allegedly discussed 9/11 plot details were faked or altered but she could not explain why due to Protective Order #3.

Waltz’s testimony covered other categories of evidence, and it was not always clear to the public what information was prohibited by Protective Order #3 or fell under the prosecution’s more general and frequent use of the national security privilege.

On Thursday afternoon, prosecutors initially raised concerns about an extensive line of questioning pursued by the lead lawyer for al Hawsawi, Walter Ruiz, during his cross-examination. He asked Waltz to compare documents, in what appeared as an attempt to show that Waltz’s analysis of the intercepted phone calls could have been tainted by her review of CIA cables that documented coercive black site interrogations. McCall allowed the questioning to go forward but allowed Ruiz to use only a narrow range of words when referring to a long list of classified documents not shown to the gallery.

In about 20 different instances, Waltz confirmed that certain “terms” or “explanations” from CIA cables generated from interrogations were also used in her analyses and explanations of the phone calls. Earlier in her testimony, Waltz had portrayed her review of CIA cables as a "routine" part of her investigative work related to the 9/11 case. Under questioning by Ruiz, Waltz testified that she did not recall ever reviewing the cables he was showing her that contained language that parallels the language used in her analysis of the calls. Ruiz asked her if she could say that she “never” saw one of the cables.

“Can you do that?” Ruiz asked.

“I can’t say I never saw it,” Waltz responded.

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 September 2024.