Guantanamo Naval Base, Cuba – Even in the pandemic-ravaged years of 2020 and 2021, the Sept. 11 military commission produced memorable days in court – from pretrial testimony in January 2020 of two former CIA psychologist-interrogators to the arrival of a new judge on the 20th anniversary of the 9/11 attacks in September 2021.
That new judge, Air Force Col. Matthew McCall, was expected to use 2022 to resume the witness-intensive suppression hearings that will determine if the government can use at trial the incriminating statements the five defendants made on Guantanamo Bay in 2007 after their arrival from CIA black sites.
Instead, 2022 may prove to be the first in the case’s 10-plus-year history in which no public hearings take place. After holding sessions in September and November 2021, McCall cancelled the January 2022 session due to concerns over the Omicron variant. The unexpected departure of one of the lead defense lawyers prevented the start of a three-week hearing in March, signaling another round of potentially lengthy delays. The prosecution then initiated negotiations with the five defense teams that would remove the death penalty as a sentencing option in return for pleading guilty to roles in planning the Sept. 11 attacks.
The case, which dates to the May 2012 arraignment, has been on hold – at least from a public court perspective – since that blockbuster development earlier this year that seemed to offer the hope of a breakthrough. McCall cancelled a planned three-week session in May and then a month-long session that would have spanned parts of June and July.
Lawyers on the case have declined to discuss efforts to reach plea deals. They have previously acknowledged that complex terms relating to any locations and conditions of the defendants' confinement will need buy-in from senior Biden administration officials. Prosecutors told McCall in a June court filing that they sent provisions requiring approval by “policy makers” to the Department of Defense’s Office of the General Counsel in late March.
Four of the five defense teams supported cancelling the month-long session scheduled between mid-September and mid-October as the parties awaited a response from the Biden administration. The prosecution did not oppose the motion. According to a defense filing, prosecutors told the teams that the key plea proposals were “under active consideration at high levels of the government.” That filing also stated that the prosecution did not expect “a formal response prior to the November hearings.” This has led some of the teams to preemptively request that McCall cancel the Nov. 7-18 session – the last scheduled for 2022.
McCall decided to truncate the planned September-October hearing to one week, Sept. 26-30, but only to hold ex parte or private hearings with three defense teams requesting them. Members of all five defense teams and prosecutors travelled to Guantanamo Bay for the week, though it was widely assumed that none of the pending matters would bring the parties into open court. McCall has not yet decided whether to hold a November session.
Lawyers for defendant Mustafa al Hawsawi opposed cancelling the September-October session. Walter Ruiz, al Hawsawi’s lead lawyer, declined to discuss the team’s strategy with the two members of the media who travelled to Guantanamo Bay this past week. In a written motion, al Hawsawi's team stated that it is “committed to continuing to pursue a negotiated settlement” while also “moving the litigation of the case forward.” Ruiz sought to have McCall hear oral arguments on several of his team’s motions to compel discovery, as well as motions to dismiss the case for violation of speedy trial rights and to compel the deposition of certain witnesses relevant to the unresolved suppression hearing. Ruiz did not say whether he would renew the request for a November hearing.
According to a defense filing, prosecutors told the teams that the key plea proposals were “under active consideration at high levels of the government.”
Ruiz also declined to comment on his team’s decision in late August to once again seek to sever al Hawsawi from the larger case, a request initially made in May 2014. The first judge on the case, Army Col. James Pohl, denied that motion in March 2017. The lawyers have now asked McCall – the fourth judge to preside over 9/11 hearings on Guantanamo Bay – to reconsider Pohl’s ruling, even as they continue to support the plea negotiations. In the past, both in court as well as to reporters, Ruiz has said that his client deserves “individualized justice” and would face more fair proceedings away from defendants who have greater alleged culpability, most notably the suspected chief planner of the attacks, Khalid Shaikh Mohammad.
McCall asked the other defense teams and the prosecution to weigh in on the al Hawsawi team’s request. While the other defense teams took no position on severance, the prosecution team opposes it for a variety of reasons – among them the “emotional toll” of having victim family members “relive their trauma through multiple trials,” according to a filing by Clay Trivett, the government's managing trial counsel.
That same filing, however, acknowledges that the proceedings for defendant Ramzi bin al Shibh may have to move to a separate track due to questions about his competency. Bin al Shibh has claimed since the outset of the case that the guard force or some other entity at the detention facility on Guantanamo Bay has been subjecting him to noises, vibrations and other invisible attacks to continue his torture by the CIA.
One of Judge McCall’s predecessors, Air Force Col. Shane Cohen, ordered in December 2019 that a government-appointed doctor conduct a full mental health evaluation to assess bin al Shibh’s competency. Trivett said in his filing that “any challenges to his competency (or litigation to order the restoration of his competency) can and should occur simultaneous to continued negotiations with the other defendants.
David Bruck, the lead lawyer for bin al Shibh, declined to discuss the matter. A recent filing from his team on scheduling issues stated that the “unrelenting attacks” against bin al Shibh “have recently grown worse.”
The next steps hang in the balance. If any plea agreements are reached, the military commission will eventually hold a sentencing trial – or perhaps multiple trials, depending on severance determinations – at which the defense teams and the prosecution will present parts of their cases to a jury of military officers. However, if negotiations break down, McCall is expected to resume the suppression hearing with witness testimony on the admissibility of confessions the defendants made to FBI agents on Guantanamo Bay in 2007. The government has said that these statements are among its most "critical" evidence in the case.
Prosecutors contend the defendants made their statements voluntarily in rapport-based interview sessions with the FBI, and that the statements are sufficiently “attenuated” from the coercive interrogations at CIA black sites in prior years. Defense teams claim the statements are tainted by the CIA’s past torture of their clients, as well as by the FBI’s coordination with the CIA during both the black site and Guantanamo Bay interrogations.
In 2019 and early 2020, Judge Cohen began hearing testimony from FBI agents who investigated the 9/11 attacks and from the two architects of the CIA interrogation program, Dr. James Mitchell and Dr. Bruce Jessen. Cohen began those hearings even as disputes over the volume of potential witnesses who could be called to testify remained. By the time Cohen departed the case for personal reasons in March 2020, defense teams had filed a number of motions to compel additional discovery related to the suppression efforts.
After inheriting the case last year, Judge McCall decided to hold off on resuming witness testimony until he worked his way through the pending motions. Since then, he has ordered the government to provide additional discovery. While those orders are not yet public, the government has filed numerous motions asking McCall for additional time to comply.
James Connell, the lead lawyer for Ammar al Baluchi, said on Friday that his team already had received helpful discovery after prevailing on its motion to compel documents on “interagency processes” for obtaining the January 2007 statements made to the FBI. Connell said the discovery provided led his team to identify 30 additional potential witnesses for the suppression hearing.
2022 may prove to be the first in the case’s 10-plus-year history in which no public hearings take place.
“The military commission is trying to give us the additional discovery we need to explore the links between the FBI and the CIA in the torture program,” Connell said.
Defense teams contend those links help prove that the 2007 FBI interrogations were not “clean” of the prior torture at CIA black sites. Prosecutors have claimed that the FBI-CIA coordination is largely irrelevant based on their position that the FBI agents relied on their own investigative work to question the five 9/11 suspects in January 2007.
A separate defense argument countering the notion that the 2007 statements were “attenuated” from the CIA years is based on evidence of the agency’s having exercised some level of control of the Camp 7 detention facility on Guantanamo Bay after the detainees arrived there in September 2006. In January, McCall sided with a motion by the bin al Shibh team to “compel production of CIA records related to Camp 7.” The government has filed seven motions for additional time to comply with that order, which it has described as “broad.” In this and other discovery areas, the government will seek to provide substitute or summary evidence to defense teams to protect classified information.
The prosecution team indicated in one recent filing that completing its obligations with McCall's recent discovery orders – which “have caused the prosecution team to have to review approximately 24,625 pages of material” – will take until spring 2023.
To resume any progress with the suppression hearing next year could present additional complications for the team of defendant Walid bin Attash. Last March, his longtime lead lawyer, Cheryl Bormann, departed the case on an undisclosed employment issue after an investigation by the Military Commissions Defense Organization. (It was this development that helped push the government team to pursue plea agreements in the overarching prosecution. ) Under the law, defendants facing a death sentence in the commissions system are entitled to a “learned counsel” experienced in capital defenses.
Bormann's replacement, Matthew Engle, joined the case this summer. He has received an interim top-secret security clearance but still needs to be “read in” to certain secret programs relevant to the case. After the bin Attash team motioned for a cancellation of the September-October hearing, McCall asked the other defense teams and the prosecution for briefing on whether he should sever bin Attash from the case. The government has contended that bin Attash’s existing lawyers provide sufficient capital experience as Engle familiarizes himself with the case.
Engle declined to comment on Friday on whether his team would seek additional delays or seek severance in the months ahead.
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.