Federal Agent Says 9/11 Suspect Was ‘The Boss’ of His Guantanamo Interrogations

Guantanamo Naval Base, Cuba – Walid bin Attash, a defendant in the Sept. 11 case, arrived at his interview session on Guantanamo Bay in January 2007 with a message for whomever might preside over his case: “He said to tell the judge that he was pleased with what he did, he took full responsibility,” former Naval investigator Robert McFadden testified Wednesday.

Lead prosecutor Clay Trivett examined McFadden for two days, during which the former agent testified that bin Attash participated voluntarily in interview sessions in January and October 2007, and again in February 2008. McFadden said that bin Attash was friendly and eager to discuss his role in 9/11 and other terrorist plots. He occasionally entered into “lecture mode” with his interrogators, McFadden claimed.

McFadden also acknowledged that bin Attash was neither read his Miranda rights nor provided access to a lawyer as McFadden and other federal agents attempted to elicit “clean” statements from high-value detainees after years of mistreatment and incommunicado detention by the CIA.

McFadden said that he and an FBI special agent who conducted the questioning, Stephen Gaudin, ensured bin Attash understood “he was the boss” of the sessions, deciding which questions to answer and when the sessions would begin and end. The agents also repeatedly assured bin Attash that he would not be returned to CIA custody, regardless of how he answered their questions. McFadden – now an advisor at the Pentagon – described the bin Attash sessions as among the most professionally satisfying of his two decades as a criminal investigator.

McFadden's direct testimony from the court’s remote hearing facility in Virginia came at the tail end of the Sept. 11 case’s first-ever five-week session. Before his anticipated retirement later this year, Judge Air Force Col. Matthew McCall intends to rule on defense motions to suppress purportedly sanitized statements given to federal agents on Guantanamo Bay following years of CIA-induced reaction. McCall said during this session that he is prepared to delay his retirement if needed.

The team leading the defense for bin Attash is anchored by Matthew Engle. That team will likely cross-examine McFadden at the next month-long session, scheduled to begin July 15. Defense lawyers have long contended that the CIA torture program brutally conditioned their clients into cooperating during debriefing or interview sessions – as bin Attash and the other defendants did during the FBI-led sessions on Guantanamo Bay.

Lawyers for defendant Ammar al Baluchi, during the session's fourth week, called a forensic psychiatrist to testify about the effects of the CIA's "fear conditioning." Dr. Charles Morgan testified that al Baluchi would not be able to “meaningfully distinguish” his January 2007 interrogators on Guantanamo Bay from those who questioned him during his previous protracted period of CIA coercion and isolation.

With McFadden’s testimony, prosecutors have now called at least one witness – most of them former or current FBI agents and analysts – who led or participated in the interview sessions that the government intends to use at trial against the alleged 9/11 conspirators. In addition to bin Attash and al Baluchi, the remaining defendants include Khalid Shaikh Mohammad, the accused plot mastermind, and Mustafa al Hawsawi. The FBI agent who led the January 2007 session for Ramzi bin al Shibh also testified in late 2019, however McCall severed bin al Shibh last year after determining he has become mentally incompetent to assist in his own defense.

Prosecutors still hope in the next session to call Gaudin, who is said to be suffering from unspecified health problems, to testify to the circumstances of the interrogations on Guantanamo Bay. McFadden's testimony echoed that of prior FBI witnesses who said they told the 9/11 suspects that they did not have to participate in the interviews and that their days with the CIA were over for good.

Oddities of the early 2007 sessions have also been drawn out from the FBI agents, including having to write the summaries of their interviews on CIA laptops and provide their work product for the CIA to review. Any allegations made by the suspects about CIA abuse were required to be documented in a separate memorandum, McFadden and the other agents testified.

The agents who participated in the sessions could also review CIA reporting from the black sites about the suspects prior to traveling to Guantanamo Bay for the January 2007 reinterrogations. On Wednesday, McFadden testified he had access to the intelligence reports from the black sites but did not “recall reading anything from the CIA prior to” meeting bin Attash.

McFadden was one of the lead investigators on the bombing of the USS Cole off the coast of Yemen in October 2000. He testified that bin Attash quickly became a suspect as a key facilitator in that attack, though he was not charged in its military commission. The government charged Abd al Rahim al Nashiri as the lead planner of the USS Cole bombing. In that case, a military judge last August suppressed al Nashiri’s statements to McFadden and Gaudin in January 2007 because of his earlier torture by the CIA. McFadden testified in that case in July 2022.

Army Col. Lanny Acosta noted in his ruling that Gaudin and McFadden used traditional interview techniques and treated al Nashiri with "fairness and respect." However, he concluded that al Nashiri "could not be expected to ascertain" that the agents "were actually from a different agency than the one that had tortured him for years." The government has appealed the ruling. 

In the 9/11 military commission, bin Attash is accused of assisting in the training of hijackers, researching flight timetables and testing airport security protocols by bringing box cutters on flights. McFadden said that bin Attash did not express any remorse for his role in either the 9/11 or USS Cole plots.

Earlier this session, another of bin Attash’s civilian lawyers, William Montross, argued that McCall should compel the testimony of a covert CIA officer known only in court as “SG1.” Montross said that discovery provided by the government showed that SG1 had “direct and substantial” contact with his client during the most intense periods of his torture.

The two key CIA witnesses who have so far testified in the case – Drs. James Mitchell and Bruce Jessen – inflicted “enhanced interrogation techniques” on Mohammad but had little interaction with the other defendants. Mitchell has testified extensively over two hearings, while Jessen testified for just part of a day in January 2020. This year, Jessen’s testimony has been postponed because of his health. However, the prosecution said this week that Jessen will be ready to testify during the first week of the session starting in July.

McCall indicated that he is likely to hold off ruling on the need for SG1’s testimony, or hearing arguments on the need for other disputed CIA witnesses, until Jessen’s testimony is complete. As part of a complex set of rulings he inherited from his predecessors, McCall will factor the defense teams’ inability to independently contact CIA witnesses – imposed by one of the case’s protective orders – into his decision whether to admit the FBI statements given on Guantanamo Bay.

McCall plans to hear testimony from six or seven witnesses during the July-August session. He reiterated to prosecutors that he wants them to discuss with "equity partners" the options for having covert witnesses testify should that become necessary. 

"I'm going to maintain an aggressive posture," McCall said. 

McCall resumed the suppression hearing last September – four years after it began – after delays caused by Covid-19 travel restrictions and a subsequent lengthy period in which the parties attempted but failed to reach plea deals. Both defense lawyers and prosecutors said during this session that plea agreements remain a possibility and source of continuing discussion among the parties. 

Since the litigation resumed, defense teams have argued that the government’s shifting classification limitations and ongoing invocation of the national security privilege have unduly hampered their cases. On Friday, James Connell, the lead lawyer for al Baluchi, expressed alarm to McCall over the government’s assertion of the national security privilege during his oral arguments related to the testimony of an upcoming witness. That witness is the first Army commander of the Camp 7 detention facility that held the defendants after their arrival from the black sites. He first testified in the suppression hearing in November 2019.

Connell said that the prosecution’s decision to cut off his arguments during a session that was closed to the public was “a new and radical evolution” of the national security privilege.

“That is the death of the adversarial system,” Connell said.

The Senate’s summary report on the CIA's interrogation program said that the agency had “operational control” of Camp 7 for an unspecified period of time after the high-value detainees arrived from the black sites. The details and duration of this control could undermine the government’s claims that the January 2007 interrogations were sufficiently “attenuated” from the detainees’ CIA custody.

During his 2019 testimony, the first Camp 7 commander said that he had “full responsibility” of the facility during his direct examination by the prosecution. Defense attorneys could not cross-examine him in open court on this topic. Connell was able to elicit from the witness that the guards at the facility wore military uniforms though they were not members of the military.

The first Camp 7 commander, who has remained anonymous during the litigation, is scheduled to testify during the third week of the next session.

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.