Photo of USS Cole Memorial in Norfolk, Va., by Petty Officer 2nd Class Jacob Milham.
Guantanamo Naval Base, Cuba – Former CIA contract psychologist Dr. James Mitchell testified this week about waterboarding and other abuses he inflicted on the Guantanamo Bay detainee accused of planning the bombing of the USS Cole in Yemen in October 2000.
Mitchell explained in detail on Monday how he and his partner in building the CIA interrogation program, Dr. Bruce Jessen, conducted three waterboarding sessions of Abd al Rahim al Nashiri over multiple days in November 2002 in an effort to stop what the Bush administration believed was “a second wave” of terrorist attacks to follow those on Sept. 11, 2001.
Mitchell testified that he and Jessen stopped the waterboarding during the third session at a CIA black site referred to as “Location 3” because al Nashiri almost “slid out of the restraints” that secured him to the gurney when it was held upright to let him expel water.
“We didn’t think it was safe to continue,” Mitchell said during questioning by al Nashiri’s lead lawyer, Anthony Natale.
Natale referred to his client, who weighed only about 120 pounds at the time, as a “skinny, little guy.” Mitchell agreed with the characterization.
Dressed in an untucked button down shirt and slacks Monday morning, al Nashiri hugged members of his team prior to court but left for his holding cell outside before testimony began. He faces a possible death sentence for his alleged role in the attack that killed 17 sailors and wounded dozens of others.
Mitchell said that al Nashiri began providing useful intelligence in subsequent interrogation sessions at Location 3, leading the interrogation team to “taper off” from what the CIA referred to as its “enhanced interrogation techniques,” or “EITs.” For al Nashiri, Mitchell said these techniques also included sleep deprivation, slapping, periods of confinement in a box and a process of being repeatedly pushed hard against a wall known as “walling.” According to his testimony, Mitchell based the techniques on those he used as an instructor in the Air Force’s Survival, Evasion, Resistance, and Escape, or SERE, program, which puts trainees through abusive situations to prepare them for capture by hostile forces.
Mitchell said Monday afternoon that al Nashiri would crawl into the confinement box to get away from the bright lights in his cell that were on 24 hours a day.
“Nashiri actually liked being in the box,” Mitchell said.
Mitchell testified from the military commissions’ Remote Hearing Room in Virginia, which was broadcast to the courtroom on Guantanamo Bay on a screen behind and above the witness stand. Natale and the prosecution team also conducted their questioning of Mitchell from the remote site, though most other members of the teams were in court on the U.S. Naval Base. The judge, Army Col. Lanny Acosta, presided from the Guantanamo courtroom.
On Tuesday morning, Natale brought a re-creation of the confinement box to the remote site for Mitchell to view; it did not reach the attorney’s waist, appearing on the courtroom screen to be about the size and shape of a small refrigerator. He also directed Mitchell to a page in the Senate’s summary report of the CIA program that described a box for another detainee at Location 3 being 21 inches wide and 2.5 feet high. Mitchell said he trusted the re-creation to be roughly the dimensions of al Nashiri’s box but said it did not look like the box actually used.
Al Nashiri's lawyers called Mitchell in support of claims that their client's past torture by the CIA should render inadmissible the statements he later made to the FBI in early 2007, after arriving at Guantanamo Bay from the black site program. Mitchell is also a witness in a separate motion to have the case abated, or to have the death penalty removed as a sentencing option, over the destruction of videotapes of the Location 3 interrogation sessions. On Tuesday, Mitchell confirmed to Natale that al Nashiri’s interrogations at the site were videotaped but said he did not recall ever viewing them.
Prosecutors contend that the discovery provided to the defense on the CIA program is an adequate replacement for what they would have been able to view on the tapes. Under a brief cross examination by a member of the prosecution team, Navy Lt. Cmdr. Cherie Jolly, Mitchell said he supported the decision by CIA leadership in 2005 to destroy the tapes because he feared their leak or obtainment by al Qaeda would risk the lives of the personnel likely visible in the recordings.
Mitchell did not know the answer to a number of questions Natale had about the details of al Nashiri’s treatment across the black sites and the destruction of the videotapes. Defense lawyers will also use his testimony to support their requests for additional witnesses. In oral arguments Wednesday, al Nashiri’s lead military lawyer, Navy Capt. Brian Mizer, listed additional witnesses sought by the defense, including Jessen and those identified only by code. Mizer told Acosta that he would be going through the transcript to count how many times Mitchell said “I don’t know” during his testimony.
Mitchell testified for nearly two weeks on Guantanamo Bay in January 2020 in the separate military commission against the five detainees accused of planning the Sept. 11 terrorist attacks. During that dramatic hearing, Mitchell displayed a wide range of emotion on the witness stand over a grueling nine days of questioning by five separate defense teams.
His remote testimony Monday and Tuesday was more subdued, though he regularly expressed frustration over what he viewed as Natale’s overly broad questions about specific events and tactics at issue in the CIA's interrogations.
Natale covered some similar ground as his counterparts in the Sept. 11 case, including asking Mitchell to discuss his interactions with a combative CIA operative referred to by the code identifier “NX2." (NX2 also interrogated 9/11 suspects.) Mitchell testified on Monday that, after Location 3, al Nashiri was renditioned to a site called “Location 4” where NX2 led interrogations that used techniques not approved by the Department of Justice – straying from the SERE methods employed by he and Jessen.
Mitchell said he witnessed NX2 and his interrogators put al Nashiri’s restrained hands behind his back, wrap a belt around his arms and push the belt upward.
“I became concerned that they were going to dislocate his shoulders,” Mitchell said.
He testified that interrogators improperly put a broom stick behind al Nashiri’s knees before pushing him back in a kneeling stress position. They also used a harsh brush against his “genitals and ass” before rubbing the brush against his face and hair.
Mitchell said he complained to NX2 at Location 4 and felt the techniques were particularly counterproductive given that al Nashiri had previously started cooperating at Location 3. He said NX2 told him “to get the fuck out of the room” and threatened to have him detained by guards. Natale asked Mitchell if he thought NX2 was serious.
“Oh, I know he was serious,” Mitchell said.
Mitchell said his complaints to senior CIA officials eventually led to the removal of NX2 and his team from the location, though not before another of the detainees at the site – Gul Rahman – died from exposure in the facility in late 2002. NX2 himself later died of causes that are not public. The Senate report also states that al Nashiri was threatened with a power drill and a handgun. Mitchell said he only learned in recent days when meeting with prosecutors that he had been subjected to rectal feeding.
On Tuesday, Mitchell said he had less contact with al Nashiri as he remained generally cooperative in “debriefing” sessions with CIA personnel and rotated through a series of black sites. Al Nashiri spent time at Guantanamo Bay when a portion of the detention facility was used as a black site between 2003 and 2004. That he was later questioned by FBI agents at this same location is an element of his team’s contention that those 2007 statements are tainted by his past torture and incommunicado isolation by the CIA. Al Nashiri has a diagnosis of post-traumatic stress disorder.
Mitchell told Natale that he brought al Nashiri a meal from the Naval Base's McDonald’s when he was earlier held at its black site location, even though Mitchell warned him that the food was not Halal.
“Don’t tell me that, just go get the Big Mac,” al Nashiri responded, according to Mitchell.
During Jolly's cross-examination, Mitchell said that someone diagnosed with PTSD could still give a voluntary statement to law enforcement.
Mitchell concluded his testimony Tuesday afternoon. A trial date is not set in the long-delayed case, which dates to al Nashiri's November 2011 arraignment.
Mitchell is still slated to give additional testimony in the Sept. 11 case on classified topics not covered in the January 2020 open hearing, though a date has not been set. Recently, proceedings in that case have been postponed by the departure of one of the teams' lead defense lawyers and the decision by the parties to enter into plea negotiations. Thursday marks the 10-year anniversary of the 9/11 defendants’ arraignment on Guantanamo Bay. The next hearing is scheduled for June 27 to July 22.
Judge Rules that Detainee Does Not Have to Submit to Deposition
A fellow Guantanamo detainee, Abd al Salam al Hilah, was scheduled to give closed deposition testimony on Thursday and Friday. Last year, Acosta granted a motion to depose al Hilah filed by al Nashiri’s lawyers, who contend that the detainee has exculpatory information critical to their client’s right to a fair trial. Al Hilah, a Yemeni, has been cleared for release by the interagency Periodic Review Board, though the Biden administration has not yet found a host nation to take him. He has not been charged in a military commission.
Al Hilah refused to leave the detention facility Thursday morning. Hours later, Acosta and the parties discussed in an open session the appropriate method for requiring him to come to court for the deposition. Two lawyers for al Hilah were also present. One of those lawyers, Army Maj. Michael Lyness, told Acosta that al Hilah would invoke his right against self-incrimination. The judge nevertheless decided that al Hilah would have to do so in person. On Thursday evening, he issued a writ to the commander of the detention facility to produce al Hilah “using only the minimum force required” for a deposition the next day.
Al Hilah arrived on Friday morning but refused to take part in the deposition with the deposition officer. Acosta convened another open session shortly before noon to engage in a colloquy with the detainee. Switching regularly between Arabic and English, al Hilah told Acosta that he had “nothing to hide” but was concerned that the government would “manipulate” his answers and use them against him. His voice rising at times, al Hilah said that both he and his family have suffered during his 20 years in U.S. custody.
Lyness rose to say that his client’s statement was a “clear invocation” of his right against self-incrimination. Acosta agreed and decided that the deposition would not go forward. He recessed the commission until the next hearing, scheduled to start July 25.
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.