A portion of the Guantanamo Bay detention facility in Camp 5, where the 9/11 defendants are now held.
Guantanamo Naval Base, Cuba – The latest pretrial session in the Sept. 11 case ended much where it began as defense teams continued their quest for more information and witnesses related to the FBI’s role at CIA black sites that subjected the five defendants to abusive conditions between 2002 and 2006.
In doing so, however, lawyers revealed the details of a previously unknown level of integration between the agencies – that at least nine FBI agents actually became CIA agents for an undisclosed period of time while the defendants were held at the secret locations.
“FBI agents stopped being FBI agents and became CIA agents temporarily,” James Connell, the lead lawyer for one of the five defendants, Ammar al Baluchi, said Thursday.
Connell told the judge, Air Force Col. Matthew McCall, that the FBI agents’ switch to the CIA might have been a tactic of “deniability” or “strategic ambiguity” to obscure the FBI’s involvement in the black-site program. The FBI also later conducted the interrogations on Guantanamo Bay that the government hopes to use at trial.
Prosecutor Clay Trivett downplayed the significance of the change in affiliation of the nine agents. He said the government had no need for deniability because the Bush administration made interagency cooperation a public priority after the 9/11 attacks. Trivett said the memorandum of understanding between the CIA and FBI over the detailing of the nine agents to the CIA was intended to keep information in "correct channels” for the purposes of “information security.”
“This is not some big bombshell,” Trivett said.
The revelation came on the last day of open court of a three-week session. It was yet another twist in a serpentine series of discovery disputes underpinned with years of history and resentment. Over the contentious hearing, prosecutors and defense lawyers agreed on little other than the fact that McCall – presiding over his second session of a case that dates to May 2012 – is in an unenviable position.
As he did in his first session, in September, McCall allowed – and often encouraged – lawyers on both sides to provide expansive background and context to their oral arguments so he could become educated on the turns of the unlikely path that brought the case to his doorstep 20 years after the 9/11 attacks without a trial date on the calendar.
Most critically at this phase, defense teams are litigating to suppress the incriminating statements their clients made to FBI agents on Guantanamo Bay in early 2007, after their transfer from the black sites. Lawyers contend that the early and ongoing coordination between the CIA and FBI shows that those statements were the fruits of torture. Prosecutors contend that the FBI agents who elicited confessions from the defendants in 2007 relied on the FBI’s post-9/11 investigative work – and not on information from the black site interrogations.
Earlier, McCall decided against resuming witness testimony during this session for the suppression dispute. Instead, he dedicated most of this three-week session to a number of discovery motions over the CIA’s rendition program and the FBI’s role in it. He said he would bring “clarity” to these disputes as the return of FBI witnesses looms for next year.
Thursday’s revelation came as part the overlapping motions seeking more information about CIA-FBI collaboration both at the black sites and at Guantanamo Bay. Defense lawyers have by and large stopped referring to the CIA’s rendition program as a CIA program, favoring instead the portrayal of a government-wide system of extracting statements from detainees in a variety of settings, the latest being on Guantanamo Bay in 2007 as the government hoped to fashion valid statements for a criminal case.
On Thursday morning, a military lawyer for another of the defendants, Walid bin Attash, asked McCall to order the government to produce the names of FBI witnesses who were at CIA black sites in the 30-day periods both before and after bin Attash’s presence at the sites. Air Force Maj. Jay Peer said his team initially asked for the names of agents who were “co-located” at the sites with bin Attash, then broadened its “temporal” request after prosecutors said that no agents were at the sites “at the same time” as their client.
Peer said the government’s refusal to provide the names “speaks volumes” and that his team is entitled to investigate how FBI agents helped prepare CIA interrogators for interviews, review the intelligence learned and later plan for future sessions.
Echoing his colleagues from prior days, Peer noted that the defense teams did not begin to receive any discovery on the FBI’s role at CIA black sites until mid-2018.
“Many years after the arraignment in this case,” Peer said on a video feed from the commissions' remote hearing room in Virginia.
Defense teams learned about the nine FBI agents switching their affiliation to the CIA as part of the earlier tranches of discovery on FBI-CIA coordination. However, it was only recently declassified for public consumption.
Following Peer, Connell used the unusual CIA-FBI arrangement to alert McCall that he should be wary of the government’s use of “distortions” of the rendition program when assessing the pending discovery disputes.
“All may not be as it seems,” Connell said.
Trivett told McCall that the nine FBI-turned-CIA agents participated in debriefing sessions at black sites during which “enhanced interrogation techniques” were not employed. Of the nine agents, Trivett told McCall that the government has provided the defense teams with the names of the five who either interviewed the defendants or assisted in the preparation of the sessions at Guantanamo.
He said that the government began providing discovery on CIA-FBI coordination relatively late in the litigation because prosecutors had not been aware of the extent of the FBI’s participation in the CIA program. Just minutes earlier, however, Connell pointed McCall to a document the defense team received in 2015 about the black sites in which the government redacted information that showed the involvement of the FBI. Connell said that someone from the government side made an “affirmative” decision to hide the FBI’s role from the defense.
McCall has more on his plate than CIA-FBI collaboration. The defense teams and prosecutors have another series of discovery disputes over the issue of “hostilities.” Because the military commissions system established during the Bush administration and amended under Barack Obama is meant to prosecute war crimes, the government has to prove at trial as an element of the offenses that the United States was in an armed conflict with al Qaeda at the time of the 9/11 attacks.
Defense lawyers are seeking information about how the Clinton and Bush administrations dealt with the al Qaeda threat prior to Sept. 11, 2001, as part an effort to show that the response was more consistent with law-enforcement than actual war. The prosecution contends it has complied with its discovery obligations on the hostilities evidence. Oral arguments on these disputes took place at the tail end of the second week and the start of the third week during this session.
Also this week, defense lawyers queued up for McCall the question of the constitution’s applicability to the Guantanamo Bay proceedings. Lawyers want their clients present for closed sessions of the suppression witnesses in which classified information is discussed on the grounds that their absence violates due process and confrontation clause protections in the 5th, 6th and 8th amendments. Prosecutors contend that the classified sessions are reserved for those with appropriate security clearances and that the defendants can attend the “vast majority” of the proceedings in open hearings.
Thursday’s oral arguments concluded with another member of Connell’s team, Alka Pradhan, asking McCall to order the government to preserve the Camp 7 portion of the detention facility where the five defendants and other former CIA prisoners were held prior to their transfer earlier this year to another area, Camp 5. Pradhan explained in significant detail late Thursday how Camp 7 fell apart and was rife with sewage issues.
Before recessing, McCall asked for input on how the two-week session scheduled to start Jan. 10 should unfold. It was not immediately clear whether the suppression hearings would resume with testimony of one or more FBI personnel who participated in the 9/11 investigation, including agents who interrogated the defendants on Guantanamo Bay.
About the author: John Ryan (email@example.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. View our staff page.