Government Witness Testifies to “Free Will” Of USS Cole Suspect in Guantanamo Interrogations

A view of detainee holding cells outside the Guantanamo Bay courtroom.

Guantanamo Naval Base, Cuba –  A forensic psychiatrist on Thursday testified that a defendant’s “very unpleasant and distressing” past treatment by the CIA did not prevent him from later participating, in early 2007, voluntarily in interrogations with federal law enforcement agents.  

“He was demonstrating free will and the ability to choose to participate,” Dr. Michael Welner, a consultant to the government, testified under direct examination by one of the prosecutors, Navy Lt. Tess Schwartz.

Abd al Rahim al Nashiri made incriminating statements to agents of the FBI and Naval Criminal Investigative Service in late January and early February 2007 about his alleged role in the bombing of the USS Cole in October 2000. The sessions took place in the detention center on the Guantanamo Bay Naval Base nearly five months after al Nashiri’s transfer from CIA black sites, where he endured waterboarding, threats of execution, nudity, stress positions, sleep deprivation, cramped confinement and other abuses.

Welner testified that al Nashiri was not in a state of “learned helplessness” during the FBI and NCIS sessions in 2007. He said that al Nashiri displayed creativity, boldness and even “bravado” during the questioning rather than the “passive defeatism” that characterizes the condition of learned helplessness.  

“He made choices within the dialogue about what to talk about and when,” Welner told Schwartz.

The government team hopes to introduce the incriminating statements at al Nashiri’s as-of-yet unscheduled death penalty trial for the attack that killed 17 sailors off the coast of Yemen. His defense team contends that al Nashiri’s years of torture and isolation at CIA black sites conditioned him to say whatever his interrogators wanted, rendering his subsequent statements to the FBI and NCIS in 2007 involuntary. They have asked the judge, Army Col. Lanny Acosta, to suppress the statements.

In support of the suppression motion, defense lawyer Annie Morgan questioned former CIA contract psychologist Bruce Jessen for three days last week about the “enhanced interrogation techniques” that he and his partner in structuring the interrogations, Dr. James Mitchell, used on al Nashiri. In a dramatic turn, Morgan and Jessen reenacted several of these scenes from the black sites during his testimony. Al Nashiri’s lawyers say that their client suffers from complex post-traumatic stress disorder, anxiety, vertigo and a wide range musculoskeletal problems. 

Welner testified that al Nashiri did not exhibit signs of PTSD from the time of his arrival on Guantanamo Bay in September 2006 throughout the first three months of 2007. He noted that, instead of avoiding guards at the detention facility, al Nashiri initiated confrontations with them by damaging his cell and engaging in other disruptive behavior.

“Guards were not affecting him in a psychological way that was reflective of PTSD or another anxiety condition,” Welner said.

In formulating several of his questions on cross-examination, however, lead defense attorney Anthony Natale suggested that his client would not have been triggered by the guards on Guantanamo Bay because guards at the black sites were not the individuals responsible for implementing most enhanced techniques or deciding when they were used.

“That was not a decision made by guards,” Welner acknowledged.

Both Schwartz and Natale conducted their examinations of Welner in the military commissions’ remote hearing facility in Northern Virginia.

Welner has not met with al Nashiri. He testified under questioning by Schwartz as well as Natale that he based his opinions on “contemporaneous source material” from the September 2006 to March 2007 timeframe on Guantanamo Bay, including al Nashiri’s medical, mental health and other detainee management records. He said he also reviewed the write-up of al Nashiri’s statements to the FBI and the NCIS in 2007, as well as earlier testimony of agents who portrayed the sessions as voluntary.

Under questioning by Natale, Welner said he could not point to any scientific research or study that supports the methodology he used to reach his conclusions about al Nashiri’s mental state during his early months on Guantanamo Bay.

“What’s the error rate of the methodology that you utilized?” Natale asked.

“I don’t know,” Welner said. He added that conducting “contemporaneous evaluations” is a “generally accepted practice” in court cases.

Welner testified that he reviewed materials that documented al Nashiri’s treatment by the CIA from 2002 until 2006. Natale recalled for the witness each of the harsh measures, which included threats to rape al Nashiri’s mother in front of him and rectal feeding that the defense team refers to as “anal rape.”  

Welner testified this treatment could, but would not necessarily, lead to PTSD. He reiterated that he did not see evidence of PTSD in “the narrow period” surrounding al Nashiri’s statements in early 2007. He told Natale that he knew the FBI and NCIS interviewed al Nashiri in the same location of the Guantanamo Bay facility where he had spent time when the CIA used it as a black site between 2003 and 2004. 

During Schwartz's brief redirect examination, Welner testified that that an individual with PTSD could still participate voluntarily in a law enforcement interrogation if that person was not “actively re-experiencing” a past trauma during the questioning.

Welner is the chairman of The Forensic Panel, which provides expert witness and consulting services for criminal and civil cases. On Wednesday, Welner testified that he previously had a clinical practice before focusing more exclusively in recent years on his work as a forensic psychiatric expert. He said that he previously testified for the government on Guantanamo Bay in the military commission against Omar Khadr, who pleaded guilty in 2010 and was later repatriated to Canada. 

Judge Acosta concluded Thursday’s proceedings by asking Welner about Mitchell and Jessen’s system of conditioning detainees into more cooperative behavior through the use of enhanced techniques and then conducting “maintenance visits” to make sure the detainees did not need to return to more harsh conditions. He asked Welner if a maintenance regime could keep the conditioning in place.

“I think it’s in the eye of the beholder,” Welner said.

Schwartz and Natale finished their examinations in a classified session closed to the public on Friday, the last day of this two-week session. The next hearing is scheduled to last three weeks beginning June 12. Acosta plans to hear oral arguments on the defense motion to suppress al Nashiri's statements during the June session. 

About the author: John Ryan (john@lawdragon.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.