With Key FBI Witness, 9/11 Case Returns to Suppression Hearings of Historic Complexity

Guantanamo Naval Base, Cuba – Prosecutors on Guantanamo Bay this week called one of the most important witnesses in their efforts to hold Khalid Shaikh Mohammad accountable for his alleged role in orchestrating the 9/11 attacks.

Retired FBI Special Agent Frank Pellegrino testified that Mohammad freely and voluntarily admitted to his crimes in interrogations that took place over four days on Guantanamo Bay in mid-January 2007. Those sessions were held four months after the U.S. government transferred Mohammad and other high-value detainees from CIA black sites, where they suffered years of isolation and abuse.

Under questioning by Ed Ryan of the Justice Department, Pellegrino testified that Mohammad did not exhibit any signs of fear or physical discomfort when discussing his involvement with the 9/11 attacks. And, he said, his 32-page write-up was a full and accurate representation of the interview sessions.

“You stand by it?” Ryan asked on Monday afternoon.

“Yes, I do,” Pellegrino said.

The government intends to use the statement at trial, as it does separate statements taken from his co-defendants in early 2007 on Guantanamo Bay. The defense teams have moved to suppress the confessions, claiming that the CIA’s prior torture and incommunicado detention of their clients rendered any subsequent statements to the FBI involuntary. This core dispute – and its accompanying battles over witnesses and evidence – has come to define the entire pretrial litigation. 

In his cross-examination on Tuesday, defense lawyer Gary Sowards asserted that the goal of the CIA program – its desired “end product” – was to condition detainees into engaging with the type of cordial, open-ended discussions that Pellegrino described having with Mohammad on Guantanamo Bay in January 2007.

“Did anyone explain that to you?” Sowards, who is Mohammad’s lead lawyer, asked.

“No,” Pellegrino responded.

The former agent insisted that Mohammad understood that his participation was voluntary and that he would not be returned to CIA custody. Pellegrino nevertheless repeatedly indicated that he was not supportive of what the CIA did to Mohammad.

On Wednesday, facing questions about the program from Rita Radostitz, a civilian lawyer for defendant Ammar al Baluchi, Pellegrino was more explicit.

“I think that the whole thing from the beginning was a flaming bag of crap that we got stuck with,” Pellegrino said.

The suppression hearings commenced in September 2019 before the case’s third judge, Air Force Col. Shane Cohen. Since then, they have been largely on hold, first due to travel restrictions imposed by global pandemic and then to the initiation in March 2022 of plea talks between the defense teams and the prosecution. Air Force Col. Matthew McCall, the fourth judge to preside over hearings, decided to move forward with suppression hearings this month after the Biden administration rejected plea-deal terms related to the defendants’ conditions of confinement and healthcare.

Pellegrino’s testimony was highly anticipated even before the pandemic shut down proceedings for a year and a half. He had spent most of his early career in the FBI unsuccessfully pursuing Mohammad for his alleged role in various terrorist plots that preceded 9/11. By the time he first met Mohammad on Guantanamo Bay in January 2007, Pellegrino felt like he had been preparing for the interview “his entire life,” he testified.

While critically important, Pellegrino's testimony is just a small piece of the case’s maddening pretrial puzzle. A trial date is still not set in the 11-year-old case, and most attorneys predict that at least two years of pretrial litigation remain. The suppression hearings have resumed even as other disputes over relevant witnesses and discovery are pending, and as the government labors to comply with McCall’s earlier discovery orders. In addition, the defense and prosecution teams still must litigate the admissibility of several other types of evidence, including secret recordings made of the defendants at the Guantanamo Bay detention facility after their arrival from the black sites.

James Connell, the lead lawyer for al Baluchi, who is Mohammad’s nephew, told reporters this past weekend that plea negotiations are only “sleeping” and could reopen once the military commissions system has its new Pentagon overseer, called the “convening authority,” in place. Jeffrey Wood, the outgoing convening authority who authorized the prior round of plea negotiations, retires next month.

Absent plea deals, Judge McCall will steer the witness-intensive hearings until his own retirement next April. Last week, he severed one of the five defendants, Ramzi bin al Shibh, from the case after finding him mentally incompetent to stand trial. He plans to use the remaining three weeks of this month-long hearing for witness testimony and oral arguments on the wide array of pending motions.

Prior to the pandemic, defense teams advanced two intersecting theories to suppress their clients’ 2007 confessions on Guantanamo Bay. One alleges that the CIA tortured the defendants into saying anything their interrogators wanted, rendering all subsequent statements unreliable. The other is that the FBI’s participation in the CIA program – which has been disclosed in detail during the suppression litigation – offers additional proof that the so-called “clean" statements are in fact the products of torture.

The early suppression hearings largely focused on al Baluchi, as Connell’s team was the first to iron out an initial witness list with the government. Throughout the summer and fall of 2019, four FBI witnesses testified that they sent questions into the CIA black sites for interrogators to ask detainees, including the 9/11 suspects. Three of the agents, including the two who took al Baluchi’s statement on Guantanamo Bay in 2007, also acknowledged accessing CIA reporting from the black sites prior to conducting what they intended to be clean interrogations.

In January 2020, Connell called as witnesses Drs. James Mitchell and Bruce Jessen, the two CIA contract psychologists who helped design the CIA’s interrogation program. All five defense teams examined Mitchell over nine days on the stand. However, they only completed their open-court sessions with Mitchell; his closed-door testimony on classified matters was expected to last several additional days. Jessen, meanwhile, took the stand for just part of the last day of the two-week hearing. His was the last suppression-related testimony received before the pandemic.

In addition to completing those examinations, defense teams are seeking access to dozens of additional CIA witnesses from the black sites – including interrogators, analysts, guards, psychologists, doctors and linguists – whom the government has refused to make available. At some point, McCall or his successor will likely have to wrestle with defense motions to compel additional witnesses related both to the black sites and to the Camp 7 detention facility on Guantanamo Bay, where the defendants were housed at the time of the early 2007 FBI interrogations.

Connell agreed to table his motion to compel additional witnesses while he and the government worked through the agreed-upon first tranche. However, he told reporters this week that his team has identified up to 100 witnesses it may want to call. Many CIA and Camp 7 witnesses have covert status and are only referred to in court by unique functional identifiers, or UFIs, which would make their testimony – if ordered by a judge – a significant logistical and security challenge.

Beyond that, any judge who eventually rules on whether to suppress the defendants’ confessions will have to sort through a court record of unusual length and complexity due to the restrictions the government imposed on defense teams during their investigations of the CIA program and in their examinations of witnesses in court.

In late 2017, the government barred defense teams from independently contacting current or former CIA employees or contractors believed to have a connection to what was formally known as the “Rendition, Detention and Interrogation,” or RDI, program. After close to a year of litigation on that dispute, the case’s first judge, Army Col. James Pohl, excluded any use of the FBI “clean team statements” as a sanction against the government for its investigative restrictions. Pohl reasoned that the restrictions would unfairly hinder the defense teams’ efforts to effectively present their cases for suppression.

That ruling, had it stayed in place, would have obviated the need for suppression hearings. Pohl’s successor, however, granted the prosecution’s motion to reconsider the ruling. In April 2019, Marine Col. Keith Parrella found that Pohl’s order was “premature” and ordered the defense teams to at least begin to present their suppression cases – which he said would allow for a better assessment of the fairness of the proceedings.

Judge Cohen, who took over for Parrella in June 2019, adopted this approach and began hearing witness testimony in September 2019. During testimony between that hearing and January 2020, prosecutors asserted the national security privilege over significant areas of information that defense lawyers wanted to cover with witnesses. As a result, defense teams could not elicit the information even in classified sessions closed to the public. The parties forged a system where defense lawyers asked questions they knew the witnesses could not answer, in order to establish a record of what was excluded from court.

McCall or a future judge could suppress the statements made to the FBI based on a finding they were not made voluntarily or, alternatively, by concluding that the defense teams were not fairly positioned to present their cases. A judge could also impose another sanction against the government, including removing the death penalty as a sentencing option. The prosecution would likely appeal either outcome, which would create additional delays to any trial.

For years, the prosecution has insisted that its protocols for accessing witnesses and examining them in court appropriately balance the demands of protecting national security with the due-process rights of the defendants. 

Last month, the judge in the separate military commission against Abd al Rahim al Nashiri decided that he had enough evidence to rule on suppression. Army Col. Lanny Acosta sided with the defense. He determined that the CIA’s past torture of al Nashiri, who is charged with a leadership role in the USS Cole bombing, rendered his incriminating statements to federal agents in early 2007 involuntary. The government appealed the ruling.

In many ways, Pellegrino’s testimony this week echoed that of other federal agents who have testified in both the 9/11 case and in al Nashiri’s commission. Like them, he worked under the same protocols set by the FBI and CIA for the January 2007 sessions. The agents did not read the detainees their Miranda rights nor give them access to lawyers, even if they inquired about legal representation – as Mohammad did. The agents told the detainees that the sessions were voluntary and that they would not be returned to the entity that had previously held them – meaning the CIA. Like the prior witnesses, Pellegrino testified that he had to type up his summary of the interrogations on a CIA laptop but that the agency did not influence how he conducted his questioning.

Under direct examination, Pellegrino testified that Mohammad was cooperative, engaged and “willing to joke back and forth” during their conversations. At one point, Pellegrino said he told Mohammad that the Toshiba computer seized during his arrest in Pakistan in March 2003 was nicer than the one he used for the FBI.

“He said, ‘Frank, if you join al Qaeda, I can get you a good computer,’” Pellegrino told Ryan.

Ryan asked if Mohammad appeared to be so “broken” by his prior treatment that he could not participate freely in an interrogation.

“Absolutely not,” Pellegrino said.

Under cross examination, however, Pellegrino acknowledged that he did not include in his 32-page memorandum Mohammad’s description of himself as “a slave.” FBI analyst Brian Antol, who was present in the room during the sessions, captured the remark in notes that were provided to the defense team during discovery. (Antol is scheduled to testify next week.)

The CIA briefed Pellegrino prior to the January 2007 sessions that it had employed a limited number of “enhanced interrogation techniques” at the black sites, including walling, slapping and sleep deprivation, Pellegrino testified. But, he told Sowards, he did not know that Mohammad had been waterboarded 183 times or suffered a series of other extreme abuses – including “anal rape” through rectal hydration and receiving multiple threats that his children would be executed.

Sowards showed Pellegrino a CIA cable in which black site personnel reported that they would not have to return Mohammad to enhanced measures because he had resumed cooperating with debriefing sessions in which he openly volunteered information and used “appropriate interludes of humor.” Pellegrino acknowledged that parts of the cable were similar to how he described his own exchanges with Mohammad.

Sowards asked Pellegrino if he would have changed his assessment of Mohammad’s ability to participate voluntarily in the sessions if he knew the full scope of the prior abuse, which included an ongoing threat to return to the "hard times" if he did not satisfy his CIA debriefers. Pellegrino said that he still would have conducted the sessions in the same rapport-building fashion he used throughout his entire career. Further, he maintained that his four interviews of Mohammad were voluntary.

Pellegrino and Mohammad were not physically reunited in court this week. Ryan examined Pellegrino from the court system’s remote hearing room in Virginia. Sowards questioned him from the actual courtroom in Guantanamo Bay, with the defense lawyer and star witness each peering into screens spaced more than 1,000 miles apart. In court, Pellegrino’s testimony appeared on a large screen placed above the empty witness box.

At one point, Pellegrino guided Sowards in placing a plastic table and three plastic chairs in front of McCall to recreate the interrogation room used to question Mohammad on Guantanamo Bay in 2007. (A criminal investigator from the Department of Defense sat behind Pellegrino and Antol during the interviews.) Sowards asked Pellegrino if he knew that the set-up was similar to the ones used for Mohammad’s debriefing sessions at CIA black sites; the witness said he did not.

Sowards also attempted to ask Pellegrino about a reference in the Senate’s 2014 summary report of the RDI program that the CIA maintained “operational control” of Camp 7 after the high-value detainees arrived. Defense lawyers have long contended this fact undercuts the government’s claim that the early 2007 sessions were sufficiently attenuated from the interrogations at CIA black sites.

The attempted exchange prompted the court security officer to set off a flashing red light in the courtroom and interrupt the audio-visual feed, which comes to the viewing gallery on a 40-second delay to prevent the spill of classified information. The proceedings were delayed for two hours as the prosecution awaited guidance from the “original classification authorities” on what could be asked in open court.

After unintentionally setting off the light a second time, Sowards was finally able to ask Pellegrino if he knew that the guards at Camp 7 wore military uniforms but were not members of the military – a fact already in the public record from early rounds of the suppression hearings. Pellegrino said he did not know that when he first met Mohammad in January 2007. As part of the protocols, Pellegrino told Mohammed that he was in the custody of the U.S. military. 

The episode was hardly unique in the suppression hearings. Defense attorneys regularly interrupt their own witness examinations to huddle with prosecutors away from the podium to discuss how a question can be asked in open court. Quite often, this process takes place to formulate a question that the parties know the witness cannot answer.

On Thursday, Walter Ruiz, the lead lawyer for Mustafa al Hawsawi, asked Pellegrino if he knew that the area where he conducted his interrogations in 2007 had earlier been a CIA black site. (Both al Hawsawi and the severed defendant, bin al Shibh, spent time at the Guantanamo Bay black site between 2003 and 2004.) Pellegrino said he did not know this at the time he conducted the interviews. He said that the location would not have been his choice for detainees who had previously been interrogated there.

“I would have thought that a different place would have been better,” Pellegrino said.

Pellegrino also acknowledged that, in pre-trip planning for the "clean" sessions, he expressed concerns to FBI lawyers about giving Mohammad the modified rights advisement that did not include any rights to counsel. If asked about legal representation by detainees, the FBI agents were instructed to tell them they were not entitled to lawyers because they had not yet been charged with crimes. However, Pellegrino testified that he knew that Mohammad had been indicted about a decade earlier in New York federal court for his alleged planning role in the planting of bombs on commercial planes in the so-called "Manila Air Plot."

The defense team for Walid bin Attash, who sits behind Mohammad, chose not to examine Pellegrino. That team is led by Matthew Engle, a Virginia criminal defense lawyer who replaced Cheryl Bormann following her withdrawal from the case in March 2022. Engle was detailed to his assignment as bin Attash’s “learned counsel” in late 2022. Last month, McCall rejected the team’s motion for a continuance of the proceedings or to be severed from the case.

Before Pellegrino took the stand on Monday, Engle rose to renew his objection to moving forward with the testimony on the grounds that he has not yet had sufficient time to review the case’s extensive record. McCall noted the objection.

Reached outside court, Engle did not comment on whether he would participate in upcoming sessions if the government called as witnesses the federal agents who took bin Attash’s statements on Guantanamo Bay in early 2007 and again in 2008. The next pretrial session is scheduled for two weeks beginning November 6.

While prosecutors have referred to the 2007 statements as “critical” to their case, the government has other evidence it hopes to use at trial – any of which is likely to face challenges to its admissibility. For example, Mohammad also took responsibility for his alleged crimes in his March 2007 Combatant Status Review Tribunal, an administrative process used by the Bush administration to determine if Guantanamo detainees were properly held as combatants.

Litigation in 2019 over a protective order revealed that the government has recordings of phone calls made between Mohammad and other defendants prior to the 9/11 attacks in which they allegedly discussed the plot. Witness testimony later in the year also revealed that the Camp 7 detention facility that housed the former CIA captives recorded them in conversations. The government has presented evidence in court against both al Baluchi and al Hawsawi of wire transfers, travel papers and other documents purporting to show links between those two defendants and many of the 19 hijackers.

The government also claims that the five defendants made a valid confession with a typed document, called “The Islamic Response to the Government’s Nine Allegations,” filed during the first attempt to prosecute the defendants, who were charged during the Bush administration in 2008. The six-page statement boasting of the attacks was filed while three of the defendants represented themselves.

During Ryan's brief redirect examination, Pellegrino reiterated that his assessment of Mohammad's voluntariness was based on the subject's cooperative behavior over four days of meetings on Jan. 12, 13, 14 and 16 in 2007 – not only on Mohammad's clear understanding of his right not to participate. He said that Mohammad declined to meet with his team on Jan. 15 and informed him through the guard force on Jan. 17 that the sessions were done for good, even though Pellegrino had many more questions for him.

"He had decided to not speak to us any longer," Pellegrino said.

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.  His book on the 9/11 case is scheduled for publication in March 2024.