Suppression Testimony Completed in Sept. 11 Case

Editor's Note: This article was supported by The Pulitzer Center.

Guantanamo Naval Base, Cuba – The case to hold to account those who allegedly conspired to cause mass death and destruction on 9/11 quietly turned a page here on Tuesday as the court concluded testimony from the last government witness scheduled to testify on the admissibility of confessions made by the accused after they arrived from CIA black sites.

It has been more than five years, nearly 30 witnesses, a global pandemic and a change in judges since the crucial hearing commenced on defense motions to suppress statements made by Khalid Shaikh Mohammad and the four men originally charged alongside him with orchestrating the worst-ever attacks on U.S. soil. The defendants challenged incriminating statements they gave to FBI agents on Guantanamo Bay about four months after their September 2006 transfer from custody of the CIA, which had subjected them to torture and more than three years of incommunicado detention.

The government has spent the better part of a decade parrying the cumbersome effort to admit the so-called "clean" FBI statements, while also whittling the pool of potential CIA witnesses from several dozen covert officers to two former contractors who have appeared. 

When the curtain fell, it was at the completion of testimony by Dr. Michael Welner, a forensic psychiatrist and government expert. Welner testified this week that Ammar al Baluchi – the sole remaining defendant who has not yet signed a plea deal with the government – was not suffering from “uncontrollable stress” or re-experiencing any trauma from his past CIA custody when, in January 2007, he confessed to his role as a facilitator in the 9/11 attacks to his FBI interrogators. 

“He was able to make a voluntary statement,” Welner testified Tuesday morning.

The CIA had previously subjected al Baluchi to “enhanced interrogation techniques” that included depriving him of sleep for 85 hours straight, slamming him against the wall ("walling"), placing him in painful stress positions and dousing him in water, according to its own reporting. Defense experts testified earlier this year that al Baluchi suffered from PTSD and the effects of brain trauma during his FBI interviews as a result of his past torture.

Welner disputed defense experts throughout his testimony. CIA medical records and those kept by the Guantanamo Bay prison staff documented that al Baluchi’s condensed period of enhanced interrogation by the CIA neither caused serious psychological nor physical injury, he testified.

Welner gave his conclusions on the fifth day of direct examination by prosecutor Jeffrey Groharing. Both participated from the court’s remote hearing room in Northern Virginia and were viewed in the courtroom on Guantanamo Bay. Al Baluchi avoided court for most of Welner's testimony, much of which involved the witness and Groharing discussing the defendant's psychiatric and medical history after his rendition to the CIA from Pakistani authorities in 2003.

In one CIA psychiatric assessment from mid-2003, al Baluchi told personnel that he heard a woman referenced in some public reporting as his wife, Aafia Siddiqui, being raped and tortured to death in an adjacent cell. (Al Baluchi's legal team does not comment on whether he and Siddiqui were ever married.)

Groharing questioned Welner about the assessment, in which al Baluchi also reported hearing the murder of the woman's baby and seeing CIA personnel standing around a small coffin conspiring to hide the crime. Al Baluchi also reported hearing Mohammad, who is his uncle, being tortured and murdered, and said that he was able to avoid bullets that CIA interrogators shot into his cell.

CIA personnel concluded, and Welner concurred, that al Baluchi had fabricated a psychotic break. Welner said that agency personnel determined al Baluchi made up the story so his captors would provide updates on people who were important to him.

A number of more mundane CIA psychiatric assessments showed al Baluchi largely well adjusted to his long-term confinement after he entered the program’s “debriefing phase” for cooperative detainees, Welner testified. CIA reporting documented that al Baluchi was somewhat prone to persistent “self-criticism” and problems with maintaining focus and attention. Welner said that al Baluchi reported in one mental status exam "increased feelings of anxiety accompanied by intrusive thoughts of imagined potential mistreatment," though al Baluchi also "denied that staff had mistreated him."

Al Baluchi also expressed anxiety over what might happen to him after his usefulness as an intelligence source had been exhausted. By mid-2005, he had helped produce 278 intelligence reports, according to a CIA document displayed in court. However, Welner testified that al Baluchi remained “cognitively intact,” valued the intellectual stimulation provided by his debriefers and responded well to self-help literature.

Welner noted that al Baluchi’s anxiety worsened on occasion after his transfer to Guantanamo Bay in September 2006, according to reporting by prison staff. The psychiatrist who first treated the detainees after their arrival from the black sites testified earlier this year under the pseudonym “WK5I.” Welner said he found reasonable WK5I's diagnosis that al Baluchi suffered mixed anxiety and depressive disorder. WK5I’s team reported that al Baluchi suffered from panic attacks and nightmares but still benefited significantly from his devotion to routines built around reading, exercise and religion, along with continued guidance from self-help experts.

It was significant, Welner testified, that al Baluchi expressed no concerns to WK5I either before or after his FBI interviews in January 2007. Al Baluchi and WK5I had a trusting relationship, Welner testified, based on medical records, leading him to believe that al Baluchi would have told her or a member of her team if the FBI sessions had triggered traumatic memories from the black sites.

On Tuesday, Groharing played in court a small portion of secret recordings of the detainees made in the detention facility in the months and years after their arrival on Guantanamo Bay. A simultaneous transcript displayed on courtroom monitors showed al Baluchi discussing his FBI interviews with another detainee with whom he was given limited recreational time. Al Baluchi characterized as “disasters” the documentary evidence the FBI agents showed him. Al Baluchi is accused of wiring funds and providing other assistance to some of the 9/11 hijackers. His legal team has challenged the evidentiary foundation of the recordings, which is pending. 

The government has spent the better part of a decade parrying the cumbersome effort to admit the so-called "clean" FBI statements, while also whittling the pool of potential CIA witnesses from several dozen covert officers to two former contractors who have appeared. 

Al Baluchi’s defense team contends that the CIA’s torture and incommunicado detention conditioned him into telling his interrogators whatever they wanted to hear, rendering the FBI statements involuntary and therefore inadmissible. Welner supported the earlier testimony from the former CIA contract psychologists who helped design the interrogation program, Drs. James Mitchell and Bruce Jessen, who claimed this “conditioned fear” from the enhanced techniques would have been “extinguished” by the time al Baluchi met with the FBI.

James Connell, al Baluchi’s lead lawyer, declined to cross-examine Welner on Tuesday after initially planning to take two days to question him. The decision cut short what the judge, Air Force Col. Matthew McCall, had anticipated to be a long day of testimony. McCall held a rare Sunday session and kept Welner on the stand until 7 p.m. on Veteran's Day to make up for time lost during the first week due to travel delays. The November hearing is now concluded. 

“Some of Dr. Welner’s points were incredibly obvious; others were obviously incredible,” Connell, who also litigated from the remote site, explained after court Tuesday afternoon. “Neither category would profit from more questions.”

Connell said that he would include information to impeach Welner in the al Baluchi team’s final written pleading on the disputed confessions, which it plans to file Dec. 9. McCall intends to hear oral arguments on the admissibility of the FBI statements during the week of Jan. 20. 

That ruling had long been considered the fulcrum around which the future jurisprudence of the 9/11 case would revolve. However, its significance is now overtaken by another issue – the legal status of the plea agreements the government reached this past summer with Mohammad, Walid bin Attash and Mustafa al Hawsawi. The deals remove the death penalty as a sentence in exchange for a full admission by the accused conspirators to the charges.

The court's appointed overseer or "convening authority," Susan Escallier, signed agreements with the three defendants on July 31. Two days later, amidst intense opposition, Sec. of Defense Lloyd Austin announced that he was withdrawing from the deals. McCall ruled last week that Austin had no lawful basis to withdraw from the agreements, which he said remained “valid and enforceable.” The judge considered moving forward with guilty pleas during this session before agreeing to a delay as the prosecution prepares its challenge to the U.S. Court of Military Commission Review.

On Tuesday morning, McCall set Jan. 6 as the tentative date to begin taking the historic pleas. Mohammad, or "KSM," will be the first to plead, under the court's scheduling. Lawyers for bin Attash and al Hawsawi told McCall they might be prepared for their plea hearings the following week. As part of the plea agreements, the defense teams dropped their challenges to the FBI confessions, which the government will be able to introduce at sentencing if the deals hold. 

If the deals fall apart, the defendants will need to rejoin the suppression litigation. McCall has said that the defense teams will be given the opportunity to recall witnesses from recent sessions. This week, the judge said that he wanted the defense teams and the prosecution to begin considering whether it would be appropriate to sever al Baluchi’s case into a separate proceeding.

The suppression hearing began in September 2019 with testimony from FBI Special Agent James Fitzgerald and former special agent Abigail Perkins, the two agents who interviewed al Baluchi on Guantanamo Bay in January 2007. The prosecution eventually called to the stand at least one federal agent from each of the teams that in early 2007 took statements from the five 9/11 defendants to build the government's criminal case.

The witnesses who either participated in or watched the FBI-led sessions consistently testified that the defendants were repeatedly told that their participation was voluntary and that they would not be returned to CIA custody. The defendants were generally reported to be friendly and willing to engage in open-ended discussions, with humor, prayer breaks and shared meals mixed in. Defense lawyers have often claimed, however, that the portrayal of their clients in the FBI sessions represents precisely the type of conditioning the CIA wanted to build through torture, isolation and relentless debriefings.

Over the years, the hearings have also revealed the depth and complexity of the FBI’s involvement in the CIA interrogations, which defense lawyers say further demonstrates that the bureau’s 2007 reinterrogations of the defendants were the inadmissible products of a government-wide torture program.

The finality of the suppression hearing is, perhaps fittingly, not entirely set in stone. The defense teams had initially sought up to 100 witnesses, many of them covert CIA officers with knowledge of the interrogation program. The al Baluchi team contends – as the other teams had before – that it would be entitled to take the testimony of many of these additional witnesses if the government meets its initial burden of establishing that the defendants' statements were voluntary through testimony from the initial set of about 30 witnesses. The prosecution disagrees, and has filed a motion asking McCall to clarify his position.

McCall has only heard arguments on one defense motion to compel the testimony of a covert CIA officer prominent in the government’s discovery, referred to in court by the identifier "SG1." He has yet to rule. The judge, however, has suggested that he would have enough testimony and evidence to rule on suppression without additional witnesses.

McCall's ruling will take into account the limitations imposed on the defense teams in preparing their suppression cases, which include the government’s decision to make most CIA witnesses – other than Mitchell and Jessen – unavailable. Earlier in the case, in September 2017, the government prohibited the defense teams from independently contacting CIA witnesses as they sought to prepare for their eventual suppression motions through investigative work. Since the suppression hearing began, the prosecution team has regularly invoked the national security privilege over a wide array of categories of information, foreclosing oral arguments or testimony on subjects in both public and closed court hearings. 

Al Baluchi did not reach a plea deal alongside his co-accused because he wants additional guarantees related to torture rehabilitation. Connell said Tuesday he did not know if it was possible to reach a plea deal with the government while the dispute over the other plea deals remains. Lawyers on the case have said that one complication is that Austin, in his revocation of the deals, asserted that he was removing the responsibility for reaching any such agreements from Escallier. Austin has claimed that role for himself, and he has said that victim family members and the American public deserve a trial. 

All three legal teams for the remaining defendants have taken the position that provisions in the plea agreements would remove the death penalty as a sentencing option from the case if Austin succeeds in withdrawing.

McCall removed the fifth defendant, Ramzi bin al Shibh, from the case in September 2023 after determining that he had become mentally incompetent to assist in his own defense. Bin al Shibh’s legal team claimed that his PTSD and delusional disorder resulted from the CIA’s earlier torture.

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 early next year.