Defense lawyers James Connell (left) and Marine Lt. Col. Derek Poteet took questions from reporters before the July 23-27 pretrial session.
Guantanamo Naval Base, Cuba – Defense lawyers in the Sept. 11 case this week pushed forward their latest attack against the admissibility of statements their clients made at Guantanamo Bay 11 years ago, after they were brought to the island from CIA black sites.
For years, the five defense teams have claimed that torture at overseas CIA prisons taints anything their clients said in more conventional interrogations conducted by FBI and Department of Defense personnel at Guantanamo starting in January 2007 – the so-called “clean team” interrogations. Prosecutors plan to use the “clean” statements at trial on the grounds that they were sufficiently “attenuated,” or distanced from, earlier coercive interrogations at CIA prisons.
But James Connell, the lead attorney for Ammar al Baluchi, told the judge on Monday that his team now plans to go farther and aggressively cut down the long-maintained narrative that the CIA was siloed off from the FBI and the Pentagon during post-9/11 interrogations.
In fact, Connell argued, recent pieces of discovery and witness testimony suggest that the FBI and Department of Defense were “involved from the beginning” in CIA interrogations, and that the CIA maintained control over the interrogations later conducted at Guantanamo. He said this “cross pollination” will show that the entire 2002-2007 period involved a continuous interrogation effort to support CIA, FBI and military law-enforcement and intelligence-gathering objectives.
Defense lawyers contend that early and ongoing collusion between intelligence and law enforcement agencies undercuts the government’s position that the interrogations at Guantanamo are free of any taint from the CIA sessions.
Cheryl Bormann, the lead attorney for Walid bin Attash, also challenged the notion of “attenuation” between the black site and Guantanamo interrogations.
“This was a long, singular, unified, coordinated effort by all agencies in the United States Government to interrogate and torture these individuals,” Bormann contended.
The defense lawyers asked the judge, Army Col. James Pohl, to order the government to provide more discovery on links between the different agencies during detention and interrogation operations. Defense teams intend to use this evidence to support motions to suppress the Guantanamo statements that will be filed later in the litigation and present Pohl with one of the most critical issues of the pretrial phase.
Ed Ryan, one of the prosecutors, told Pohl that the government will eventually dispute the defense teams’ legal arguments on inter-agency coordination but said it would provide some discovery on the topic so the teams could pursue this theory of defense. He argued that Pohl should decline issuing a discovery order until the government completed its work.
“A process is underway,” Ryan said.
Bormann said it was “ludicrous” for the prosecution to now realize that this evidence was important.
“That’s about six years too late,” Bormann said.
This week’s hearing marks the 30th pretrial session in the military commission, which dates to the May 2012 arraignment. Pohl has not yet set a trial date. Prosecutors told the judge they were working strenuously to complete the discovery process in the next several weeks so that he might be more inclined to set a date.
The past several sessions have been largely consumed by bitter exchanges over the amount and quality of evidence that the defense teams have received about the CIA interrogation program; whether the defense teams should receive more detailed information about what transpired at black sites; and whether they should be able to supplement that discovery by conducting their own investigations.
Defense teams are challenging the government’s prohibition on defense-team members independently contacting current or former CIA personnel who are suspected of being involved in the disbanded program. Pohl has not yet ruled on that dispute. Defense lawyers claim the ban is unconstitutional and a grave threat to the fairness of the military commissions system. Prosecutors contend they have adequately balanced the right to a fair trial with the need to protect national security.
The vast majority of information the defense teams have received on the black site interrogations are substitutions and summaries of original evidence. Pohl has approved the substituted evidence as adequate by putting the defense teams in substantially the same position as if they had the original material, which is the standard used in military commissions as well as in federal court cases.
On Monday, however, Connell said that the CIA had released a document in response to a reporter’s Freedom of Information Act request that contained more information – including specific dates from an interrogation – than his team had received in the substitution process. He said the discrepancy called into question the integrity of the substitution process and asked Pohl to revisit his earlier approvals of the stripped-down evidence.
Pohl appeared annoyed with the government. He questioned why a date would be considered a threat to national security in evidence presented to him for the defense teams, and then later determined to be releasable to the public.
“Why should I have any faith in these determinations?” Pohl asked one of the prosecutors, Jeffrey Groharing.
Groharing told the judge the prosecution team’s own classification authority had determined that the FOIA release was a mistake, and that he should not use the example to more broadly question the CIA evidence the defense teams have received.
“We’ve armed them to make whatever arguments they want to make,” Groharing said.
As expected, this week’s session also made clear that Trump’s choice to run the CIA, Gina Haspel – herself a former supervisor in the interrogation black-site program – will play a role in the pretrial litigation going forward.
Rita Radostitz, one of the civilian lawyers for Khalid Shaikh Mohammad, argued that Haspel made prejudicial statements during her confirmation testimony about Mohammad’s alleged role in planning the Sept. 11 attacks and other crimes. Radostitz said the statements constitute “unlawful influence” over the proceedings, which is barred by the military commissions statute. She also argued that Haspel’s role as the “original classification authority” – the decider of what information about the interrogation program can be released to the defense – also creates an unacceptable influence over defense-team operations.
Radostitz, who was making her first on-the-record appearance for the team led by David Nevin, told Pohl he should either dismiss the case or remove the death penalty as a sentencing option.
Prosecutor Robert Swann told Pohl that Haspel’s statements, like those of other past and present government officials, could be dealt with during voir dire of the panel of military officers who will decide the case at trial.
About the author: John Ryan (firstname.lastname@example.org) 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. View our staff page.