Judge on 9/11 Case Visits CIA Black Site on Guantanamo Bay

Guantanamo Naval Base, Cuba – In an apparent historic first, the military judge presiding over the Sept. 11 military commission on Friday left his highly secure courtroom here to travel five miles to the former black site on Guantanamo Bay where the CIA secretly interrogated detainees between 2003-2004 and the FBI later attempted to get "clean" statements for use in a criminal case. 

The location – Camp Echo 2 – was commandeered following the black site detentions in an effort to sanitize coerced statements extracted on this same ground, or at black sites that defense attorneys say were eerily similar. The government claims the subsequent statements, given in January 2007 to the FBI, constitute clean recountings made without coercion and should be admissible at trial. Roughly four months before the statements the Bush administration had announced the transfer of the accused and other high-value detainees to Guantanamo Bay from CIA custody.

The groundbreaking visit was led by the fourth judge to preside over pretrial hearings, Air Force Col. Matthew McCall. Earlier this week, he explained in an order that a “a site visit” to Echo 2 “would be beneficial for determining” whether he should suppress the contested statements to the FBI. The defense teams claim any disclosures to the FBI resulted from the CIA's prior torture and relentless conditioning of their clients. The prosecution claims the defendants gave their 2007 statements voluntarily.

The site visit was “historic” as “the first time a judicial officer has visited a former CIA black site,” said James Connell, the lead lawyer for defendant Ammar al Baluchi. Echo 2 is a fulcrum on which the judge will decide if the 2007 statements given to the FBI were sufficiently attenuated from the preceding years of incommunicado detention by the CIA. 

In particular, defendant Mustafa al Hawsawi was in 2007 reinterrogated by the FBI in the same location McCall today visited. Accused of conspiring to facilitate the 9/11 attacks, al Hawsawi was previously held at the Guantanamo CIA black site between late 2003 and April 2004. McCall previously severed another detainee also held at the Guantanamo Bay black site, Ramzi bin al Shibh, from the case last September after determining he is now mentally incompetent to assist in his own defense.

Defense lawyers have long maintained that the Camp Echo 2 interrogation huts bear important similarities to debriefing rooms used by the CIA at other black sites. There, the accused were repeatedly threatened with a return to “the hard times” of “enhanced interrogation techniques” should they cease cooperating.

This was McCall's first visit to the detention zone, and as far as publicly known the initial foray by any of the officers to preside over this elongated pretrial proceeding. Defense team members, in contrast, regularly travel to Echo 2 because it is the designated area for most attorney-client meetings under protocols by Joint Task Force – Guantanamo, or JTF-GTMO, which operates the prison.

In advance of the visit on Friday morning, McCall was briefed by the attorneys on their preferred areas of focus. Alka Pradhan, a lawyer for al Baluchi, explained that each hut has a “cell” that is separated by a floor-to-ceiling metal grate from a larger “interrogation room.” The huts have fluorescent lights in both areas; the interrogation side currently has a shackle hitch in the middle of the floor. Previously, she added, there was a shackle hitch in the ceiling.

The entrance to the hut opens into the interrogation area, which has plastic patio furniture and an overall monochromatic color scheme that is heavy on “shades of beige,” Pradhan added.

Pradhan asked McCall to make note of the sound of "metal on metal" as well as "gravel crunching" outside the hut. She told McCall she would provide information on the cameras and surveillance features of the huts at a closed session planned to follow the open-court briefing.

Matthew Engle, a lawyer for Walid bin Attash, requested that McCall be mindful of the limitations of viewing the location so long after the CIA used it as a black site and after the FBI used it for reinterrogations. He said that the detention staff had recently been doing work on the Camp Echo 2 area, which may have resulted in “cosmetic changes.” 

“If you were coming to my house, I’d clean up,” Engle said.

The recent work in Echo 2 was not in preparation for the visit, said Christopher Dysktra, the prosecutor who typically liaises with JTF-GTMO.

Shortly before the visit, Pradhan said it would be “tremendously significant” for the judge to see and hear details that would have “triggered an intense fear” in her client when entering the location of the January 2007 interrogations. Al Baluchi would have given any statement to his new interrogators “to avoid being tortured again,” she said.   

Several FBI witnesses who participated in or watched the January 2007 Guantanamo sessions have testified since 2019 that the interviews were cordial and constructive. Dr. James Mitchell, one of the contract CIA psychologists who led the interrogation program, has testified in the suppression hearings that the Guantanamo black site was never used for so-called "enhanced interrogations" but instead for more conversational "debriefings" with detainees who had become cooperative. 

McCall set the protocols for the site visit in an April 23 order. He determined that each defense and prosecution team was allowed to bring in one attorney. The participants would also include one court security officer; an attorney with the judicial staff; and an escort from JTF-GTMO. All parties were prohibited from making statements or asking questions during the visit. McCall said in the order that he would later “summarize the visit on the record and permit the parties to state their observations.”

Lawdragon and The New York Times – the two media organizations attending the hearing – had earlier requested the court’s public affairs officer allow media access to the site visit. A lawyer from The New York Times sent a letter to McCall and a member of the judicial staff on Wednesday – two days before the site visit – requesting that the journalists be allowed to attend or, alternatively, to “accompany the group to and from the Camp and wait outside” Echo 2 during the visit.

In court on Thursday, Connell said that allowing the journalists to wait outside Echo 2 – which he likened to reporters waiting outside a known location where a grand jury was meeting – was reasonable and supportable. McCall agreed, saying he did not “see any harm.”

“The more public we can make any aspect of this proceeding, the better,” McCall said.

Until 2019, JTF-GTMO ran tours of the detention facility, which often included stops in the adjacent Echo 1 camp, in addition to seeing the camps that housed low-value detainees and other prison facilities. However, JTF-GTMO halted media tours that year.

Clay Trivett, the lead prosecutor, told McCall on Friday morning that current JTF-GTMO policy prohibits journalists from entering the detention zone. The journalists from the New York Times and Lawdragon, accompanied by a court public affairs officer, were required to wait outside the entrance of the detention zone as the judge and the other parties entered and exited the prison complex on Friday afternoon. They were not allowed to photograph the area.

Pradhan was the first to be seen making her way to Camp Echo, being driven past at 1:41 p.m., followed by Dysktra three minutes later. Judge McCall drove himself into detention zone at 1:46 p.m., and he left at 2:18 p.m.

Camp Echo 2 is the only former CIA black site location declassified by the government. The government declassified the site only at the start of these suppression hearings, in September 2019. Reporting by journalists and the study of the CIA program by the Senate Select Committee on Intelligence had previously established that the CIA considered using Guantanamo Bay as a long-term facility but renditioned its secret prisoners off the base in 2004 when the U.S. Supreme Court agreed to hear the case of Rasul v. Bush. The court in that case eventually held that Guantanamo detainees could challenge their detentions in federal court.

McCall scheduled the black site visit this week after the previously scheduled FBI witness due to testify was announced by the government as unavailable for health reasons. Former FBI Special Agent Stephen Gaudin was one of the agents who led the reinterrogations on Guantanamo Bay in early 2007 and in 2008. Prosecutors have said he may be available for a future session.

The judge used some of the open space in week two to hear oral arguments on pending motions. On Thursday, the defense teams urged McCall to dismiss the case, remove the death penalty as a sentencing option or fashion another remedy for the government’s alleged denial of their clients’ rights to a public trial.

Lawyers have repeatedly complained that unclassified pleadings can take months or even years before being posted on the website for the military commissions, long after the issues are scheduled for oral argument. Pradhan provided McCall with a sampling of unpublished filings, along with examples of the government making redactions to public transcripts on arguments and testimony that were heard in open court.

The prosecution’s regular invocation of the national security privilege also constituted an "impediment to a public trial,” said Air Force Capt. Michael Leahy, a military attorney for Khalid Shaikh Mohammad. The government, he argued, was using the classification process to “control whatever narrative comes out of the courtroom.”

“Now is the time for the appropriate remedy, which is dismissal,” Leahy said.

Dysktra disputed that the prosecution was trying to hide information, contending that the government’s “single, number one goal” was to prevent spills of classified material. He said that the process of reviewing documents for security concerns was a significant challenge given the vast amount of lengthy pleadings, attached exhibits and courtroom testimony. Nevertheless, Dysktra said, this process was now moving at a significantly faster clip.   

In brief remarks, Engle expressed alarm that the prosecution had identified its top goal as preventing spills.

“As a lawyer, I find it utterly shocking and unacceptable,” Engle said, adding the priorities should be seeking justice while ensuring a fair trial and strict adherence to ethical obligations.

“Those need to be the goals,” he said.

McCall is expected to resume witness testimony on Monday with Evan Kohlmann, a government terrorism expert.

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.