Photo of Ammar al Baluchi provided by his defense team.

Photo of Ammar al Baluchi provided by his defense team.

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

Guantanamo Naval Base, Cuba – After more than five years, the suppression hearing in the Sept. 11 case has drawn to a close much where it began – with defense lawyers claiming their client’s statements resulted from torture and the prosecution claiming they were voluntary.

Air Force Col. Matthew McCall, who is presiding over the case, told the parties Thursday afternoon that he is “hopeful” of issuing a ruling within a month. The judge this week heard three days of closing arguments on whether the CIA’s abuse and incommunicado detention of 9/11 suspect Ammar al Baluchi legally foreclosed the possibility of a voluntary confession to the FBI.

It’s a distinction with a vast difference, given the shadow of torture over efforts to convict those accused of the worst crime on U.S. soil. Prosecutors have referred to the statements taken by the FBI as among their most critical evidence in the case.

Prosecutor Jeffrey Groharing argued that al Baluchi’s “undeniably harsh” treatment by the CIA in “miserable” conditions did not render him “a broken man” when, in January 2007 – roughly four months after he was transferred to Guantanamo from CIA black sites – he admitted to a pair of FBI agents his role in the attacks. Groharing urged McCall to find that al Baluchi’s FBI confession was voluntary.

“The evidence is overwhelming that he was capable of – and did – provide voluntary statements under the law,” Groharing said Tuesday afternoon.

Alka Pradhan, a civilian lawyer for al Baluchi, countered that the CIA’s own investigation into how her client was treated concluded that its so-called “enhanced interrogation techniques” had conditioned him into a compliant detainee who remained intensely fearful of displeasing his interrogators.

“He was compliant, he was afraid of being killed and that fear remains to this day,” Pradhan argued.

Pradhan described her client as a victim of “non-consensual human experimentation.” She rejected the prosecution’s contention that the fear conditioned into al Baluchi by the CIA would have dissipated by the time he arrived on Guantanamo Bay. The brutal treatment he endured – including prolonged sleep deprivation, repeated wall slamming, painful stress positions, starvation, water torture and three-plus years of solitary confinement – caused permanent physical and psychological damage, she said.

“He was tortured, he lives with his torture and the torture irrevocably changed his brain,” Pradhan said.

The suppression hearing, which commenced in September 2019 before the case’s third judge, Air Force Col. Shane Cohen, has consumed any progress in the case. By the numbers, nearly 30 witnesses have testified; nearly 17,000 pages of written pleadings submitted; and 15,000 pages of the case’s transcript rendered. The full transcript is now approaching the 55,000-page mark as the case lumbers through its 13th year of pretrial litigation, still without a trial date on the calendar. Even before it began, the effort to suppress the defendants’ statements was preceded by years of often-acrimonious litigation over what types of evidence would be admitted and which witnesses the defense teams could access when preparing their cases.

“The evidence is overwhelming that he was capable of – and did – provide voluntary statements under the law,” Jeffrey Groharing said.

The admissibility of the FBI statements had been the case’s dominant issue throughout its arduous path until this past summer. That’s when three of al Baluchi’s co-defendants – including his uncle and the plot’s alleged mastermind, Khalid Shaikh Mohammad – reached plea agreements with the government that removed the death penalty as a sentencing option in return for their elucidation of their roles in the attacks.

The almost instantaneous attempt by then-Sec. of Defense Lloyd Austin to withdraw from those agreements touched off a frenzy of litigation that has thus far touched three courts. Both McCall and the Court of Military Commission Review have held that Austin acted unlawfully and that the plea deals must be enforced. However, the U.S. Court of Appeals for the D.C. Circuit stayed the plea proceedings earlier this month to weigh the government’s petition to invalidate the deals. The court has scheduled oral arguments for Jan. 28.

McCall and his staff will remain at the U.S. Naval Base next week in the event the D.C. Circuit lifts the stay. McCall asked Mohammad’s team and the prosecution to be ready to proceed with Mohammad’s guilty plea on Thursday and Friday, setting the stage for what could be another round of dramatic, last-minute developments for the biggest case in U.S. history.

Mohammad, Walid bin Attash and Mustafa al Hawsawi all waived their challenges to the FBI statements and other pretrial motions as part of the July 31 agreements signed by the court’s convening authority, Susan Escallier. They have since declined to participate in the suppression hearing in which they had actively engaged because, they assert, their plea deals remain valid. This reduced what started as a suppression hearing for five alleged co-conspirators to one: al Baluchi. McCall severed a fifth defendant, Ramzi bin al Shibh, from the case in September 2023 after concluding he was not mentally competent to assist in his own defense – a status his lawyers blamed on his past torture the CIA.

Al Baluchi’s legal team has said that he declined to enter into a plea agreement, in part, to continue to push for some consequence for the government’s use of torture. One consequence could include the government agreeing not to use the FBI statements at a future sentencing trial, his lawyers said. He also wants guarantees for healthcare tailored to torture rehabilitation at the Guantanamo Bay detention facility.

The law that created the military commissions system requires that a defendant’s statements be voluntarily given to be admitted – a legal burden that falls on the prosecution to establish. Groharing urged McCall to focus on "voluntariness" in his analysis and to ignore the public debate over the CIA’s use of enhanced interrogations. Some people are “morally offended” by the program, he argued, while others feel that the government “didn’t do enough” to aggressively interrogate terror suspects after 9/11.

“You don’t have to wade into this debate,” Groharing said.

What mattered, the prosecutor contended, was al Baluchi’s “mindset” when he agreed to talk to FBI special agents James Fitzgerald and Abigail Perkins for three days in January 2007. In September 2019, as the suppression hearing got underway, both agents testified about their interview sessions with al Baluchi, calling them cordial and professional, and recounting shared meals from McDonald’s. While al Baluchi was not read his Miranda rights or provided access to counsel, the agents told al Baluchi that his participation was voluntary and that he would not be returned to CIA custody.

During that time, Groharing said, al Baluchi freely admitted to his role facilitating the attacks, which included transferring money and providing other support to 9/11 hijackers. He said that al Baluchi did not exhibit any fear when he told the agents that the United States deserved the horrors of 9/11 for its support of Israel and that Americans should feel the pain felt by Palestinians.

“He is telling his enemy why he did it, why he would do it again,” Groharing said.

The prosecutor cited the testimony of additional witnesses to support his argument that al Baluchi’s statement to the FBI was voluntary. Among them was Dr. Michael Welner, a forensic psychiatrist, who testified that al Baluchi did not suffer from a psychiatric condition that would prevent him from making a voluntary statement. Another was “Dr. WK5I,” al Baluchi’s first psychiatrist at the Camp 7 detention facility for high-value detainees, who testified that al Baluchi did not report any stress, fears or other problems associated with his FBI interviews. Even if al Baluchi had PTSD or another serious mental illness, Groharing maintained, he would still be capable of giving a voluntary statement.

Al Baluchi was subjected to three-and-a-half days of “enhanced interrogations” at the start of his captivity, in May 2003, at the black site referred to as Location 2 or Cobalt, Groharing said, based on CIA records. Al Baluchi’s treatment improved with increased amenities at subsequent black sites until his eventual transfer to Guantanamo Bay in September 2006, according to the prosecutor. The two contract CIA psychologists who helped design the program, Drs. James Mitchell and Bruce Jessen, testified earlier in the suppression hearing that the program’s goal was to use enhanced measures for a brief period to convince the detainees to cooperate in more conversational debriefing sessions.

While the vast majority of al Baluchi’s CIA custody was spent in this debriefing phase, Groharing acknowledged that his harsh treatment at Cobalt – including an 82-hour period of standing sleep deprivation while naked – and his continued isolation would have had an “impact” on the detainee.

For its part, al Baluchi’s legal team split its focus into arguments by Pradhan, who spoke to the use of torture and its effects, and his lead lawyer, James Connell, who countered the government’s position that a suspect can provide a voluntary statement after such extreme periods of coercion and isolation.

Al Baluchi attended court for parts of the arguments. He departed court early Wednesday as Pradhan began describing how CIA officers practiced enhanced techniques on him to earn their “certification” for interrogations. He observed most of Connell’s presentation on Thursday, chatting in apparently good spirits with members of his defense team at the courtroom’s fourth defense table.

“He was tortured, he lives with his torture and the torture irrevocably changed his brain,” Alka Pradhan said.

A single traumatic event – an assault, an injury during war or a torture session – could cause PTSD and other lasting damage, Pradhan argued. She said that her client endured the “near-death” sensation of drowning through water dousing and a two-hour session of walling that left him unconscious. She also said her client’s fear, misery and “utter desolation” encompassed much more than the three-and-a-half days of his actual CIA depredations, instead lasting throughout the entirety of his time at CIA black sites and during his transition to Guantanamo Bay.

CIA personnel referred to Cobalt in the starkest terms, Pradhan noted, likening it to a dungeon, a circle of hell and a Nazi concentration camp; detainees were kept in total darkness in cells resembling horse stalls, with freezing cold temperatures, loud music blasting constantly and a bucket provided for human waste. Al Baluchi was held for four months at Cobalt.

At subsequent sites, the CIA used white noise and constant light combined with solitary confinement to create conditions that would still constitute torture or cruel, inhuman or degrading treatment, Pradhan said. Al Baluchi had no human interaction with anyone but his CIA debriefers, Pradhan noted; discovery provided by the government showed that al Baluchi was questioned at least 1,119 times during his time in CIA custody.

Once he arrived on Guantanamo Bay, Pradhan continued, al Baluchi was again kept in solitary confinement before being questioned by the FBI in an interrogation room that closely resembled those used at CIA black sites. She referred to the testimony of Dr. Charles Morgan, the defense team’s forensic psychiatric expert, who testified that those similarities would have triggered “conditioned fear memories” instilled by the CIA. Morgan testified al Baluchi was suffering from mental illnesses, including PTSD, that would have prevented from making a voluntary statement, in his opinion.

The government’s theory of “attenuation” – the purported separation between the CIA and FBI interrogations – was legally unsupported by the factual circumstances that clearly demonstrated no meaningful separation between the two, Connell argued. He posed a hypothetical scenario in which an American is kidnapped by North Korea and later asked if he could differentiate between which of North Korea’s several security agencies interrogated him on a particular day. Al Baluchi saw hundreds of debriefers of which Fitzgerald and Perkins were simply the latest, Connell said: Day one of their interviews was simply day 1,120 for al Baluchi.

“A situation he’s been in literally a thousand times,” said Connell.

While his team had made “a pretty good case” that al Baluchi had PTSD at the time of the January 2007 sessions, it didn’t matter, Connell argued: The record was clear that his client was a victim of severe trauma with “an incredible cluster of symptoms” that included anxiety, depression, panic attacks, difficulty sleeping, stomach pain, nightmares, memory loss, intense headaches and trouble concentrating. Dr. WK5I diagnosed al Baluchi with mixed anxiety and depressive disorder; subsequent psychiatrists at the facility later diagnosed him with chronic PTSD. Connell displayed for the court a chart showing roughly 40 psychotropic drugs that al Baluchi has been prescribed since he was transported to Guantanamo Bay.

Connell suggested to the judge that the parties may have “overcomplicated” the dispute over whether al Baluchi gave a voluntary statement. The relevant Supreme Court case law has held that a suspect’s secret and incommunicado detention could never be followed by voluntary statements, particularly if that suspect was never given Miranda warnings. Even if al Baluchi had not been subjected to intense violence by the CIA, his three-plus years of being disappeared from the world and rendered devoid of any legal rights would still require a suppression of his statements, Connell claimed.         

Early in his presentation, Connell told McCall that he need not even make an assessment on voluntariness because he could conclude that the statements were “obtained” by torture or cruel, inhuman or degrading treatment – which is also explicitly barred by the law that created the Guantanamo court. While FBI agents did not use enhanced techniques on al Baluchi or the other suspects, their interviews were forever interwoven with the earlier CIA coercion, Connell maintained.

Amidst the near half-decade of the suppression hearing, the commingling of the CIA and FBI has provided some of the most intricate looks at efforts to both deter future attacks and bring to justice those who were suspected of planning 9/11. FBI witness testimony and documentary evidence showed that FBI agents investigating the attacks sent “intelligence requirements” or questions into the CIA black sites for its personnel to ask detainees. The FBI agents took investigative steps based on the information they received and then would provide additional requests to the CIA black sites – what Connell referred to as “information loops” and “an incredible web of interrelationships” between the two agencies.

The same agents, including Fitzgerald and Perkins, later reviewed CIA reporting on the 9/11 suspects prior to traveling to Guantanamo Bay for the January 2007 reinterrogations to build the criminal case. Connell told McCall that every topic that the agents covered with al Baluchi and included in their written summary of his statements had earlier been the subject of an intelligence requirement between the FBI and CIA.

“How is that not information obtained by torture?” Connell asked.

He argued that the FBI teams that took the statements by al Baluchi and the other 9/11 defendants – often referred to as “clean teams” during the litigation – “were as much the opposite of clean as possible.”

Beginning in late 2017, the government prohibited the five defense teams from independently contacting CIA witnesses believed to have knowledge of the black site program. The government instead devised protocols under which defense teams could make interview requests through the prosecution team. The first judge on the case, Army Col. James Pohl, preemptively suppressed the FBI statements in August 2018 on the grounds that the restrictions unfairly hindered the defense in its investigative efforts. His successor, Marine Col. Keith Parrella, reversed that decision and ordered the teams to at least attempt to prove suppression was warranted; he acknowledged Pohl may eventually be proven right to have preemptively ruled it out altogether.

Parrella's April 2019 order was widely disparaged by defense teams as defectively forcing them into “a trial run” of a suppression case. Yet it set the stage for the hearings that began before Judge Cohen in September 2019. Cohen’s early success at building some momentum with witness testimony was halted by a year-and-a-half delay caused by the Covid-19 pandemic. McCall took the case in September 2021, but he did not resume the suppression hearing for two years as the government and the defense teams engaged in an earlier round of plea negotiations that did not result in deals.

Part of the task inherited by McCall, the fourth judge to preside over hearings, is to assess the fairness of the proceedings and to weigh any sanctions warranted against the government for the limitations. While he asked the parties to include some argument about the investigative restrictions, McCall has hinted that he feels he can rule on the substance of the core substantive dispute by deciding whether al Baluchi confessed voluntarily or was abused into an inadmissible state of compliance.

The al Baluchi team was unable to interview any percipient CIA witnesses to their client’s torture or conditions of confinement at the black sites. The only witnesses the government made available for courtroom testimony who had any general knowledge of al Baluchi’s treatment were Mitchell and Jessen, though they barely recalled spending any time with him because he was not considered a high-priority detainee.

McCall is required to assess “the totality of the circumstances” to determine whether al Baluchi’s statements were voluntary, a task that Connell argued was now impossible because the government had proliferated “unknowns” through the restrictions and curation of available witnesses. If McCall decides that the government has met an initial burden on the voluntariness standard, Connell argued his team should be entitled to call several dozen witnesses who were present at the black sites to testify to what they saw. McCall has not ruled on any motions to compel additional witnesses.

Groharing disagreed, telling McCall on rebuttal that the defense is “stuck with the record they have right here.” He claimed prospective CIA witnesses avoided interviews with defense lawyers because team members had made critical comments of CIA program participants, referring to them as torturers and criminals.

He also disputed the alleged taint of the FBI’s coordination with the CIA. He said that the records of bank accounts and wire transfers that implicated al Baluchi – and which the agents confronted him with during the January 2007 sessions – were collected during the FBI's initial 9/11 investigation, well before al Baluchi was even captured in Pakistan and rendered to the CIA.

Al Baluchi’s lawyers were engaging in “judge nullification,” Groharing said, telling McCall he should be “offended” by their emotional presentation that “larded up the record” with irrelevant information. Groharing also took issue with the description of Cobalt as Dante’s “seventh circle of hell.”

That description better applied to the World Trade Center’s North Tower, where people had to choose between being consumed by flames or jumping to their deaths, he said.

“What [al Baluchi] experienced paled in comparison,” Groharing argued.

Groharing’s voice should be the “last voice” McCall hears on the suppression issue, he said, which may be true if he was referring only to al Baluchi’s case. Should the government prevail in withdrawing from the plea agreements, Mohammad, bin Attash and al Hawsawi will likely rejoin the suppression litigation. McCall has ordered each team to maintain one lawyer observing the hearings. Mohammad attended all three days of court this week while bin Attash and al Hawsawi remained at the detention camp.

McCall has said he will allow the teams to recall certain witnesses if their suppression cases go forward. He has asked the parties to begin staking out their positions on whether al Baluchi’s case should be severed from the other three. Lawyers on the case have previously estimated that the case has at least a year of pretrial litigation left, if not significantly more, once the suppression litigation is completed. A joint trial was itself was expected to last 12-18 months.

Clay Trivett, the lead prosecutor, told McCall at the end of court on Thursday that the prosecution would file a motion asking him to postpone proceedings until April to give the Trump administration time to take a position on the plea agreements. Given the possibility of Mohammad’s guilty plea late next week, McCall said he would consider ordering expedited briefing. The next hearing is otherwise scheduled to begin Feb. 17 and set to last two weeks, though McCall said he would start a week earlier if the dispute over plea deals was resolved.

McCall has already delayed his retirement three times to guide the 9/11 case through the suppression hearing and, more recently, to preside over the possible guilty pleas. He said Thursday that the four-week session scheduled to begin in mid-April would likely be his last. He did not expect to seek another postponement to his retirement.

“I think my wife would kill me,” McCall said.

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 this year