A portion of the Guantanamo Bay detention facility in Camp 5.
Guantanamo Naval Base, Cuba – A retired Air Force Colonel and interrogation expert testified on Friday that the coercive techniques used by the CIA at overseas black sites would have prevented the production of reliable information from detainees in the years after the 9/11 attacks. Ret. Col. Steven Kleinman also testified that the negative effects from the abuse of defendant Abd al Rahim al Nashiri would be ongoing, undermining future interrogations conducted by law enforcement agents who did not employ the harsh measures.
“The dread does not end,” Kleinman testified when questioned by one of al Nashiri’s military lawyers, Air Force Lt. Col. Joshua Nettinga.
Prosecutors hope to use at al Nashiri’s still-unscheduled death penalty trial the statements he made to FBI and NCIS agents on Guantanamo Bay in early 2007, about four months after his transfer from the CIA black sites. They contend that al Nashiri voluntarily discussed his alleged role in the October 2000 bombing of the USS Cole that killed 17 sailors. At the last pretrial session, in April, a government expert, Dr. Michael Welner, testified that al Nashiri “demonstrated free will” during his sessions with federal agents on Guantanamo.
Defense lawyers claim that the CIA conditioned al Nashiri into saying whatever his interrogators wanted through the torture and isolation that followed his 2002 capture. Kleinman is the last scheduled witness called to testify over al Nashiri’s motion to convince the judge, Army Col. Lanny Acosta, to suppress the 2007 statements.
Kleinman worked at the CIA between 1983 and 1985 before joining the Air Force, where his career focused on human intelligence. He served as an interrogator in several overseas deployments and later as an instructor in the Air Force’s Survival, Evasion, Resistance, and Escape ("SERE") program, which trains personnel on resistance techniques in the event of enemy capture. He also worked at the Department of Defense’s Joint Personnel Recovery Agency (JPRA), which oversees SERE programs. Acosta recognized him as an expert in human intelligence and SERE training without objection from the prosecution team.
Two former SERE instructors and psychologists, Dr. James Mitchell and Dr. Bruce Jessen, testified earlier in the case that they helped the CIA develop interrogation strategies based on the techniques used on SERE trainees. The Justice Department in 2002 approved a list of “enhanced interrogation techniques,” including facial slaps, stress positions, sleep deprivation, walling, the use of confinement boxes and waterboarding, among others.
On Friday, Kleinman portrayed this strategy as completely unsupported by either “behavioral science” or “operational experience.” He testified the U.S. government based the SERE program on techniques used by Cold War communist regimes whose goal was to produce false confessions and other statements for propaganda – not to gather useful intelligence.
Kleinman said the CIA’s approach of exerting total power and control over abused and isolated detainees would fail to create an environment in which reliable information could be elicited from a person’s memory.
“In fact, it would just do the opposite,” Kleinman told Nettinga in the commissions' remote hearing room in Northern Virginia.
On cross examination, prosecutor Ed Ryan had Kleinman confirm his views on effective methods of interrogation, which include the building of rapport and the use of open-ended questions that support a more conversational flow of information, giving an interviewee a level of respect and autonomy. Earlier in the case, the FBI and NCIS agents who led al Nashiri’s sessions on Guantanamo Bay in 2007 testified to using this rapport-based approach with him when he admitted to a planning role in the USS Cole attack.
On redirect examination, Kleinman told Nettinga that the negative effects of past abuse on a person’s memory are long-lasting.
“The debility, dependency and dread doesn’t disappear when they walk into a clean room in suits,” Kleinman said.
Drs. Mitchell and Jessen were personally involved in al Nashiri’s treatment at CIA black sites. In April, Jessen reenacted the harsh interrogation measures with one of al Nashiri’s civilian lawyers, Annie Morgan – at one point ordering her into a small confinement box similar to the one in which al Nashiri was held. During his testimony a year earlier, Mitchell recounted cutting short the waterboarding sessions of al Nashiri because he slid from the gurney’s restraints due to his slender frame.
Both Jessen and Mitchell testified that some CIA agents used unapproved techniques on al Nashiri, including dangerous stress positions, threats of execution and rectal feedings. In February of this year, a medical consultant for the team, Dr. Sondra Crosby, testified that al Nashiris still traumatized by what her client experienced as "painful sexual assaults.”
Al Nashiri’s team, led by Anthony Natale, argue that the 2007 statements are tainted by additional factors. One is that the interrogation sessions took place in the same portion of the detention facility where al Nashiri spent time when the CIA operated it as a black site between 2003 and 2004. Another is that the federal agents who questioned al Nashiri on Guantanamo Bay had access to the earlier statements he made to the CIA when preparing their interrogations. His lawyers have also said that, prior to the start of the January 2007 sessions, al Nashiri experienced “triggers” reminding him of his past abuse by the CIA.
The motion to suppress al Nashiri’s Guantanamo statements are among several critical motions pending before Acosta, who intends to issues a series of rulings prior to his retirement later this summer. Al Nashiri’s team has asked Acosta to suppress the hearsay statements of Salim Hamdan elicited by federal agents in 2002, when Hamdan was a detainee at the Guantanamo Bay detention facility. (Hamdan was freed shortly after his transfer to Yemen in 2008. An appeals court later overturned his military commission conviction.) The team has also moved to suppress the statements that a current Guantanamo Bay detainee, Walid bin Attash, made to FBI and NCIS agents in his interrogations in early 2007. Bin Attash, who is charged in the separate military commission over the Sept. 11 attacks, is suspected of playing a role in the USS Cole bombing. Both Hamdan and bin Attash have given information that implicates al Nashiri.
Defense lawyers are also challenging more than 100 hearsay statements made by Yemeni witnesses and possible suspects to federal agents in the months and years after the attack on the USS Cole.
The schedule for the next two weeks – and Acosta’s ability to rule on motions going forward – is uncertain in light of a defense motion to have him disqualified based on his application for and recent acceptance of a civilian job with the Air Force. Lawyers contend that Acosta’s pursuit of employment with the Department of Defense while presiding over a case convened by the same government entity creates an appearance of bias. Acosta denied the motion, but the U.S. Court of Military Commission Review has limited his ability to make rulings as it receives briefing on the matter.
Acosta has previously said that this session will be the last over which he presides. A four-week session is scheduled to begin August 21.
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.