Guantanamo Naval Base, Cuba – The events of Sept. 11, 2001, often seem a world away from the maze of pretrial litigation that has consumed the historic military tribunal since May 2012, when the five defendants accused of plotting the attacks were arraigned. That abruptly changed in this week's hearings – the 26th session – when lead 9/11 investigators testified to details of the alleged conspiracy.
On Tuesday, the government called FBI Special Agent James M. Fitzgerald to support its position that the commission has “personal jurisdiction” over Mustafa al Hawsawi, who is accused of helping the hijackers with financial transactions and travel into the United States.
Prosecutor Ed Ryan questioned Fitzgerald while showing video footage of the attacks, including planes crashing into the two World Trade Center towers and the towers falling; damage to the Pentagon as it was engulfed in smoke; and smoke rising up from a Pennsylvania field in video captured by a resident miles away. Ryan made reference to, but did not play, audio from the cockpit recorder of the plane that crashed in Shanksville, Penn. That plane was on its way to Washington, D.C., before passengers overtook the hijackers.
“It sounded like a life and death struggle,” Fitzgerald said.
Shortly after the videos began, a curtain was drawn in the viewing gallery of the Camp Justice courtroom to give victim family members privacy from observers.
Ryan also played segments of “pre-death” videos made by two of the 19 hijackers who explained their desire for martyrdom. Fitzgerald, a 21-year veteran of the FBI, testified about links between the hijackers as Ryan displayed flight manifests and other documents on the courtroom monitor.
Fitzgerald's testimony was presented to counter the al Hawsawi team's motion seeking dismissal based on its claim the war court has no jurisdiction over their client because the U.S. was not at war with al Qaeda at the time of the attacks. The government dates the conflict to Osama bin Laden's 1996 declaration of war against the U.S. and intends to prove al Hawsawi supported these hostilities.
On Wednesday, the government called Abigail Perkins, a now-retired FBI special agent who interrogated al Hawsawi four months after his arrival at Guantanamo Bay in September 2006. (Fitzgerald took notes during the interrogations.) Perkins testified to al Hawsawi’s alleged links to seven of the hijackers under direct examination by one of the prosecutors, Clay Trivett.
Trivett led Perkins through a long list of mail, financial and travel documents – all displayed on the courtroom monitor – that showed connections between the defendant and the hijackers. She testified that, in addition to assisting with travel arrangements, al Hawsawi received money back from hijackers as the Sept. 11 attacks neared.
Perkins said that during the interrogations conducted in January 2007, al Hawsawi confirmed his name was on the financial documents. She also played for him an al Qaeda propaganda video that showed al Hawsawi sitting down with Osama bin Laden in Afghanistan after the attacks.
According to Perkins, al Hawsai told her that he did not know the exact details of the Sept. 11 operation prior to the attacks but was happy with the results. She added that he was also pleased to watch the video, a segment of which Trivett played for the court.
“[H]e said he congratulated Osama bin Laden on the Sept. 11 terror attacks,” Perkins testified that al Hawsawi told her.
Recently Disclosed Discovery Shows Damning CIA-FBI Coordination, Defense Claims
This week’s hearings are the first to place detailed and graphic focus on the Sept. 11 attacks, as well as on the 1998 attacks on U.S. embassies in Kenya and Tanzania and the 2000 attack on the USS Cole in Yemen. Prosecutors played footage of the attack sites and interviews with bin Laden calling for the killing of U.S. military and civilians to bolster their position that the U.S. was engaged in an armed conflict with al Qaeda in the lead-up to Sept. 11, 2001.
Nevertheless, defense lawyers believe they made progress with their claims that the statements made at Guantanamo by al Hawsawi and the other defendants are tainted by past torture during multiple years at CIA black sites.
Walter Ruiz, the lead attorney for al Hawsawi, chose not cross-examine Fitzgerald on Tuesday. He told the judge, Army Col. James Pohl, that he had received just the previous night – after 9p.m. – important discovery from the government about the Guantanamo interrogations.
Ruiz accused the prosecution of providing discovery “by ambush” given that he had requested the documents back in 2013. He said he needed to review the documents before questioning the witness and may in fact need additional discovery, perhaps pushing part of the cross examination to a later session.
The government provided Ruiz with an FBI policy memo that provided agents with guidelines on how to conduct the interrogations at Guantanamo. He also was given 100-plus pages of FBI notes and exhibits from the four interrogations of al Hawsawi conducted in January 2007.
After the hearing, Ruiz told reporters that the FBI policy memo contradicts the government’s position that the FBI interrogations were “clean” from the past abusive treatment at the CIA black sites. Instead, he said, they show ongoing and damning coordination between the two agencies into 2007.
One memo dated Jan. 10, 2007 – the day before Perkins first interrogated al Hawsawi – states that FBI interrogators will be given access to “CIA databases containing intelligence reports that were previously disseminated to the intelligence community.”
Agents were informed that the interviews had to be documented “on a CIA-supplied laptop” and their notes sent to the CIA “for classification review.” Agents had to create a separate set of memos for any interrogations that detailed past CIA interrogation techniques.
“We always felt they had unclean hands,” Ruiz said of the so-called “clean-team” FBI interrogations. “This confirms that.”
James Connell, the lead attorney for Ammar al Baluchi, also portrayed the new discovery as an extremely important development in the case.
“I’ve always known a document like this had to exist,” Connell told members of the media who travelled to Guantanamo for the hearings. “It shows the connection between the larger intelligence community and the FBI.”
All five defense teams already planned to file motions to suppress the statements their clients made at Guantanamo. First, they want more information about what happened to their clients at the black sites.
Connell said that the FBI memos will assist defense teams in arguing that the FBI used information obtained by torture to structure their own interrogations.
On Wednesday, prosecutor Trivett raised the issue in court. He asked Perkins if she reviewed the CIA background information before interrogating al Hawsawi. When she gave a lengthy answer explaining that she did not “rely” on this information, Judge Pohl told her she was not being responsive.
Perkins acknowledged that the information from the earlier CIA interrogations “may have influenced me.”
However, she said the interrogations on Jan. 11, 12, 13 and 16 – totaling about 28 hours – were voluntary, professional and cordial, with the interrogators and al Hawsawi sharing lunch. She said al Hawsawi was advised that he could stop participating at any time and that he would never be returned to any other “group” that may have detained him before.
Perkins testified that the interrogation only differed from other FBI interviews in that al Hawsawi was not read Miranda rights or offered a lawyer.
Ruiz is expected to start, and possibly finish, his cross examinations of Fitzgerald and Perkins on Thursday.
His motion challenging the court’s jurisdiction over his client is based on his team’s position that hostilities did not exist between al Qaeda and the U.S. until the invasion of Afghanistan in October 2001. The absence of hostilities before then would make the case appropriate for federal court, not a military commission, Ruiz contends. He plans to call as a witness this week Creighton Law School professor Sean Watts, who is an expert in the law of war.
Connell’s team for al Baluchi is also challenging personal jurisdiction, but its hearing will not start until sometime during the 2018 pretrial sessions. The other three teams, including lawyers for alleged plot mastermind Khalid Shaikh Mohammad, are waiting for additional discovery on hostilities from the government before filing their jurisdictional motions.
The judge has not yet set a trial date. (Related: read Lawdragon's profile of Walter Ruiz.)
This article was initially published on Tuesday, Dec. 5, 2017, and updated on Dec. 6, 2017, to include Wednesday’s testimony.