Sept. 11 Judge Suppresses Confessions Due to CIA Torture

Sketch of Guantanamo Bay courtroom by Janet Hamlin.

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

The CIA’s torture and incommunicado detention of a Sept. 11 defendant rendered his later confessions inadmissible, the military judge in the case ruled Friday.

Air Force Col. Matthew McCall's decision to suppress those statements in any trial of Ammar al Baluchi brought the defense a decisive victory in the core dispute that has dominated nearly 13 years of pretrial litigation at Guantanamo Bay.

The ruling was issued Friday afternoon, according to lawyers on the case, and is not yet public.

McCall found that the prosecution failed to prove by a preponderance of evidence that al Baluchi's statements were voluntary and that they were not obtained by torture. They were made in January 2007, four months after he was transferred from secret overseas CIA locations where he was abused and held in isolation for more than three years.

The government created the Rendition, Detention and Interrogation or “RDI” program to “to train Mr. [al Baluchi] to be compliant and cooperative,” McCall found. "That program was successful." 

The prosecution had claimed the FBI interrogations were clean of any taint by the CIA program because detainees like al Baluchi were given the opportunity not to participate. However, McCall concluded that the "modestly changed confinement circumstances" of the FBI sessions “were insufficient to attenuate the lingering taint of the torture,” incommunicado detention and other abuse.

“Torture has stained the Guantanamo military commissions since their inception,” Alka Pradhan, one of al Baluchi’s civilian lawyers, said Friday evening. “This ruling is the only measure of accountability that Mr. al Baluchi has ever received for the brutality he endured, and it is long overdue.”

The case has been wending towards a resolution since the May 2012 arraignment of a single, fundamental issue: whether the government would be able to introduce “clean” or admissible statements by defendants at a death penalty trial following their years of isolation and abuse.

Testimony in the suppression hearing began in September 2019, but it was preceded by several years of litigation over what types of evidence – and which witnesses – the defense teams would have access to in preparing their cases. The prosecution has referred to the FBI statements as among its most critical evidence, and it could appeal the decision to U.S. Court of Military Commission Review.

“We are reviewing the ruling and will make a decision on whether to appeal in the near future,” Navy Rear Adm. Aaron Rugh, the chief prosecutor, said in response to written inquiries.

McCall’s ruling applies only to al Baluchi, as three of his co-defendants exited the suppression litigation this past summer after reaching plea agreements with the government. The government has since attempted to withdraw from plea deals with the accused mastermind of the 9/11 plot, Khalid Shaikh Mohammad, as well as Walid bin Attash and Mustafa al Hawsawi.

Those defendants may have to resume their suppression cases if the government prevails in withdrawing from the deals. McCall ruled in November that the government could not lawfully do so, and the Court of Military Commission Review agreed late last year. The dispute is now before the U.S. Court of Appeals for the D.C. Circuit, which heard oral arguments on Jan. 28. That ruling could come at any time.

McCall severed a fifth defendant, Ramzi bin al Shibh, from the case in September 2023 after finding that he was not mentally competent to assist in his own defense. His lawyers blamed bin al Shibh’s PTSD and delusion disorder on the CIA torture program.

McCall and his predecessor, Air Force Col. Shane Cohen, heard testimony from nearly 30 witnesses, including from the two CIA contract psychologists who helped design the agency’s enhanced interrogation techniques. FBI and other federal law enforcement agents who conducted what the government contended where “clean” interrogations of the five defendants in early 2007 also testified.

Al Baluchi, a nephew of Mohammad's, is accused of facilitating the 9/11 attacks by providing money and other assistance to hijackers. Witness testimony concluded for al Baluchi's suppression case in November. McCall heard oral arguments from the defense and prosecution teams during the last hearing, at the end of January.

In his ruling, McCall said that he was “not persuaded that Mr. [al Baluchi] actually believed he was free to remain silent during” the FBI interviews given the CIA conditioning that came in the years before.

Torture has stained the Guantanamo military commissions since their inception,” said Alka Pradhan. “This ruling is the only measure of accountability that Mr. al Baluchi has ever received for the brutality he endured, and it is long overdue.”

Mohammad, bin Attash and al Hawsawi stopped participating in the suppression litigation on Aug. 1, the day after they finalized plea agreements with the court’s convening authority, Susan Escallier. Much of the testimony in recent hearings has been from competing defense and government experts on the effects of al Baluchi’s CIA custody and early months on Guantanamo Bay on his ability to participate voluntarily in law enforcement interviews. The government had the burden to establish that al Baluchi gave voluntary statements.

If the government succeeds in withdrawing from the plea agreements, the suppression litigation for Mohammad, bin Attash and al Hawsawi will almost certainly move forward before a different judge. McCall has extended his retirement three times but said at that last hearing he is unlikely to do so again – which would make the session starting May 5 his last.

Al Baluchi prevailed despite having access to a fraction of the witnesses originally sought by his lawyers and the teams for the other defendants. The parties agreed to table motions to compel additional witnesses – including covert CIA officers and medical personnel who worked at the black sites – while working through the initial agreed-upon set.

The prosecution team has other evidence at its disposal, including intercepted phone calls among some of the defendants in the months before and after the attacks as well as secret recordings made of the defendants after they arrived at the Guantanamo Bay detention facility. The government also has evidence of wire transfers and other financial documents allegedly showing links between al Baluchi and several of the 19 hijackers.

In August 2023, the military judge in the separate military commission for Abd al Rahim al Nashiri, accused of a planning role in the USS Cole bombing, suppressed his confessions to FBI agents on Guantanamo Bay based on his past torture. The Court of Military Commission Review upheld that ruling earlier this year.

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 spring.