Defense lawyer Walter Ruiz.
Guantanamo Naval Base, Cuba – The judge on the Sept. 11 case will eventually determine an issue that the government has repeatedly acknowledged is critical to its case: The admissibility of statements the five defendants made to FBI agents at Guantanamo Bay in 2007 after they had arrived from abusive CIA black sites.
First, however, the newly assigned judge – the third in the case – must assess whether the defense teams have been allowed a fair playing field to even argue for suppression of the FBI statements given the investigative limitations placed on the teams by the government.
That’s the impasse the 9/11 military commission just can’t seem to move past. Last week, Air Force Col. Shane Cohen became the third judge in less than two years to hear oral arguments from defense teams challenging the prohibition on their ability to independently contact CIA witnesses to investigate the prior torture of their clients at overseas black sites.
As in past sessions, defense lawyers for the five accused assailed restrictions on their constitutional and ethical duties to investigate the case, while the prosecution team argued that the defendants were receiving due process in a way that protected U.S. national security as well as the identities of CIA agents.
“The longer I have been here, the more this is like ‘Groundhog Day,’” Walter Ruiz, the lead defense lawyer for Mustafa al Hawsawi, told Cohen on Thursday. “I'm somewhat envious of you because this is the first time you've heard these arguments.”
Over several hours in just his third day of court for the case, Cohen was presented with the magnitude of one of the most contentious and important issues of the pretrial phase – one that is now in his lap, more than seven years after the May 2012 arraignment. A trial date is still not set.
Prosecutors do not plan on using any statements the defendants made at CIA black sites between 2002 and 2006, and acknowledge they were coercive. The statements made to FBI agents after the defendants arrived at Guantanamo Bay are a far different matter. Prosecutors contend those statements – made by the defendants to FBI interrogators in 2007 – are sufficiently attenuated from the abusive interrogations and therefore voluntary and admissible.
Defense lawyers argue that there is no attenuation between the black site and Guantanamo interrogations. Instead, they group both sets of examinations together as one long interagency interrogation program with torture as its foundation. Lawyers argue that the severity of past torture and FBI-CIA coordination on interrogations should render the 2007 FBI statements inadmissible. All five defense teams view the restrictions on questioning CIA witnesses – or even seeking their identities to research their backgrounds – as unfairly hindering their ability to fully prepare their arguments in motions to the suppress the FBI statements.
The first judge on the case, Army Col. James Pohl, who presided over the case for six years, agreed with the defense teams on the negative impact the restrictions had on preparing suppression motions for the FBI statements. Before departing the case last summer, Pohl signed off on the restrictions on the defense but also sanctioned the government by excluding its use of the FBI statements for any purpose in the case. He concluded that the investigative restrictions would “not allow the Defense to develop the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in CIA custody."
Pohl's ruling foreclosed – at least for several months – any need for a suppression hearing on incriminating statements the government would seek to use against the defendants from the 2007 FBI interrogations at Guantanamo.
Last August, Marine Col. Keith Parrella inherited from Pohl the massive case, including a government motion to reconsider Pohl's ruling. In April, the relative newcomer reasoned that his predecessor's decision had been premature. He ordered the defense teams to file their motions to suppress the statements obtained by the FBI at Guantanamo. Parrella said in his ruling that he might ultimately agree with the defense teams that the restrictions were too severe, and thus warrant suppression of the FBI statements, but he wanted the teams to first make their suppression arguments using "all tools at their disposal."
To the surprise of no one, defense lawyers asked Parrella to reconsider his ruling. Those challenges are now in the hands of the third judge, Cohen, after Parrella left for his new assignment for the Marines earlier this month.
On Thursday, all five defense teams urged Cohen to reverse Parrella and reinstate the exclusion of the FBI statements, or at least to come up with a remedy that allows for better access to the CIA witnesses.
Ruiz described Parrella’s plan as “a fatally defective due process exercise or a test run on due process.” He likened it to taking medicine and seeing if "it has side effects."
Ruiz remonstrated that the durable Pohl had wrestled with the CIA torture litigation and the implications for disclosing the identities of CIA agents for several years before striking “the appropriate balance” between due process and national security concerns.
David Nevin, the lead lawyer for Khalid Shaikh Mohammad, also criticized Parrella’s plan to hold proceedings that would test whether the defense teams were in a fair enough position to argue for suppression of the FBI statements.
He argued to Cohen that, if defense teams failed to convince him to suppress the FBI statements, the judge would never know whether it was because the evidence wasn’t out there or because the investigative restrictions had unduly hampered the teams.
“There would just be no way to sort that out,” Nevin said.
Prosecutor Clay Trivett urged Cohen to stick to Parrella’s regime. He argued the defense teams were well equipped to make suppression arguments against the FBI statements given the 15,000 pages of evidence they’ve received about the CIA program as well as the government’s willingness to facilitate some CIA witness interviews through protocols to protect their identities. He said the government was simply doing its job to protect national security.
"The damage to national security is the same whether it's coming out of someone's mouth or whether it's on a document," Trivett argued.
The government is eager to reach the suppression hearings that will determine the admissibility of the FBI statements. Trivett told Cohen that the commission could start hearing witness testimony in September.
“We want to get this done and we want to know, up or down, do we have these statements available to us,” Trivett said. “And then we want to seat a jury and try this case.”
Thursday’s arguments were riveting, occasionally confusing and perhaps a tad overwhelming – and not just for Cohen, who began the day merely wanting to start a conversation about the status of the suppression litigation. That conversation ended past 6:30 p.m.
The arguments revealed not only the seemingly irreconcilable differences in how defense teams and prosecutors view the investigative restrictions, but also seams between defense teams that are currently on different timelines in the litigation. Cohen quickly perceived that he was dealing not with two sides of the courtroom but six different parties.
None of the defense teams felt fully prepared to file motions to suppress the FBI statements, as Parrella had ordered, though three teams have done so. As of last week, the holdouts were al Hawsawi, represented by Ruiz; and Walid bin Attash, represented by Cheryl Bormann. Neither team was confident they would file by the summer deadlines set by Parrella.
Among the quandaries, Bormann argued to Cohen, is that after Pohl's ruling foreclosing the need for suppression hearings, the convening authority – the Pentagon official overseeing the military commissions – decided against funding experts who could support suppression motions.
She told Cohen that his predecessor’s schedule for filing suppression motions was “implausible.” (Bormann also pointed out that her client made another round of statements to FBI agents in 2008 that are subject to the same suppression arguments.)
James Connell, who represents defendant Ammar al Baluchi, leads the only team that has filed both a motion to suppress the FBI statements and a list of prospective witnesses for the earliest possible suppression hearing, in September. Connell nevertheless believes that Pohl correctly sanctioned the government for imposing the investigative restrictions. In May, he chose to move forward with his motion to suppress the FBI statements so he did not lose the issue by default.
On Thursday, Connell argued that a sanction of some type was required for what he described as “the largest investigative prohibition ever considered by any court.” He said the government had plainly “distorted the adversarial process” that serves as the foundation of American justice.
He said while the government has “the absolute right” to keep CIA identities hidden, there is a price for doing so. Connell asserted that Cohen could order the government to provide the CIA witnesses for interviews or depositions, which would be another remedy by allowing the teams to better prepare for suppression hearings.
Cohen did not rule on the dispute Thursday. He thanked the parties for walking him through the long history of the litigation and said he would consider the matter carefully.
“I want to make the right decision in this case,” Cohen said. “Period.”
Among those decisions, Cohen noted Friday morning, was scheduling. He asked the government and the defense teams to submit input on how he should fashion a series of deadlines leading to a trial date.
But the theoretical September suppression hearing revealed the challenges of creating deadlines, as well as flagging the massive amount of work that remains for all parties. Trivett’s initial plan was to work through 18 witnesses in three weeks. But Connell told Cohen that his team alone might need a full week just with witness James Mitchell, the CIA contractor who developed the interrogation program.
“This is great feedback,” Cohen said.
Though Connell’s team has made advanced progress with al Baluchi's suppression case, other defense lawyers told Cohen that having another six months would put them in a much better position to file their motions to suppress the FBI statements.
Ruiz argued that Cohen could avoid the laborious suppression process by reverting to Pohl’s state of play – with the statements suppressed as a sanction against the government for the investigative prohibitions on CIA witnesses.
“Then none of this will be necessary,” Ruiz said. “This issue can and should be moot.”
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, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.