After Four-Year Gap, Former CIA Psychologist Retakes the Stand in 9/11 Case

Sketch artist Janet Hamlin captured Dr. James Mitchell’s testimony in January 2020.

Guantanamo Naval Base, Cuba – Dr. James Mitchell stated the obvious after he took the witness stand to resume testifying about the interrogation techniques he and other CIA personnel inflicted on the defendants charged with planning the Sept. 11 terrorist attacks.

“It was a long four years,” Mitchell said when greeted by James Connell, the lead lawyer for Ammar al Baluchi, on the morning of Tuesday, Feb. 20.

Much has changed in the more than four years since Connell and his defense colleagues in the Guantanamo Bay courtroom last grilled Mitchell in January 2020. His testimony stretched over nine days in what would prove to be the second-to-last hearing before the pandemic delayed proceedings.

For one, Mitchell was not in the Guantanamo courtroom this time but rather in the military commissions’ remote hearing room in Virginia. That offsite facility was created during the Covid-19 pandemic to ease travel complications among the large defense and prosecution teams.

For another, when questioning resumed hours later on behalf of accused plot mastermind, Khalid Shaikh Mohammad, his longtime civilian defense lawyer David Nevin was not in attendance. Nevin served as Mohammad’s lead lawyer from 2008 to 2019 and conducted the direct examination of Mitchell in 2020, though the lead defense role by then had been assumed by Gary Sowards.

Sowards told Mitchell on Tuesday afternoon that Nevin was “fighting for justice” in another case in Idaho, Nevin’s home state.

Also absent in the Guantanamo courtroom were the four remaining defendants, who had attended parts of Mitchell’s prior testimony. In protest of recently changed security protocols at the detention facility, the defendants this week refused to appear. A fifth defendant present in January 2020, Ramzi bin al Shibh, has since been removed from the case due to a mental illness that his lawyers say resulted from the torture program that Mitchell played a key role in engineering during his past life as a CIA contract psychologist.

That time waits for no man – unlike jurisprudence – was never more apparent than in the failure of the septuagenarian to recall his vivid threat to kill Mohammad's son. On Jan. 27, 2020, Mitchell testified that he was with Mohammad at a CIA black site and told him he would take a knife to his son's throat and kill him if Mohammad failed to provide intelligence that could stop another terrorist attack in which American children died.

Sowards asked Mitchell what lingering effects such a threat would have on Mohammad. And Mitchell denied making it.

“Nice try,” Mitchell confidently shot back.

Sowards then presented Mitchell with a transcript of his prior testimony. Mitchell acknowledged that he wanted Mohammad to think about the inquisitor personally killing one of his children.

“I wanted him to picture it in his mind,” Mitchell said.

Surpassing fading memories and attenuated courtrooms as the biggest change in the case, however, is the case's current judge, its fourth to preside over hearings. Air Force Col. Matthew McCall assumed control of the case in September 2021, amidst the 20th anniversary of the 9/11 attacks. McCall largely held in abeyance pretrial hearings as the parties explored plea deals to resolve the increasingly difficult proceedings. As those talks failed, McCall severed bin al Shibh from the case and resumed hearings on defense motions to suppress their clients' confessions on Guantanamo Bay in early 2007, where they were transported following their three-plus years at the CIA black sites.

McCall has made clear his intent to finish testimony from the first tranche of witnesses agreed to by the defense and prosecution teams during the hearings that will run through this month and a five-week session scheduled to start April 15. Whether McCall rules on the suppression dispute before he retires later this year will determine the course of the remaining pretrial phase of the epic case, which is still without a trial date.

Covid-19 has exacerbated what were already historic challenges mounting a prosecution, now more than 22 years after the attacks. McCall's predecessors regularly presided over court hearings in which various illnesses spread throughout the claustrophobic traveling court system. McCall has had to contend with the highly infectious Covid-19 and its impact on aged defendants and defense counsel and the entire retinue of the Guantanamo proceedings, all of whom interact closely while court is in session. McCall cancelled court sessions planned for Thursday and Friday when one of the lead defense lawyers tested positive for Covid.

Commission rules require that defendants facing a possible death sentence be represented by “learned counsel” with significant experience in capital cases. The repercussion of a learned counsel testing positive for Covid threatens to upend the schedule of the remaining two weeks.

Army Brig. Gen. Jackie Thompson, the chief defense counsel overseeing all the defense steams, told reporters Thursday that he previously had requested a second learned counsel for each team – a plea made multiple times by his predecessor, Marine Brig. Gen. John Baker. Thompson said his request was also denied.

“We cannot continue in a Covid environment where something happens to a learned counsel without an additional learned counsel,” Thompson said. “Delays of this type for any reason can continue to occur.”

Another key defense witness to the interrogations at an early CIA black site, former FBI Special Agent Ali Soufan, was scheduled to testify Friday – the only day he was available, according to prosecutors. Already, Dr. Bruce Jessen, who was Mitchell’s partner in developing and then running the interrogation program, cancelled his testimony for this hearing due to a health event. Another scheduled witness – a psychiatrist who treated high-value detainees after their arrival on Guantanamo Bay – also could not testify due to complications from a recent surgery.

Mitchell is expected to resume his testimony, although his availability past the early part of next week is in question. After his grueling public testimony in January 2020, Mitchell was expected to give classified testimony that spring. McCall allowed for additional open-court testimony based on changes in classification of some of the evidence relevant to Mitchell’s role in the CIA program as well as new discovery provided to defense teams in the intervening years. Mitchell nevertheless still faces one or more days of classified testimony.

Mitchell is an important witness in efforts to suppress the defendants' 2007 confessions, which their lawyers contend were conditioned by torture. The government has thus far denied defense teams from calling dozens of covert CIA witnesses who worked at the black sites. Most of the suppression hearings since they began in 2019 and resumed last year have focused on FBI witnesses who either participated in the CIA program, elicited the confessions on Guantanamo Bay – or both.

Mitchell has remained consistent in his testimony between 2020 and now that he was largely unaware of how defendants other than Mohammad were treated. In addition to threatening to kill Mohammad’s son, Mitchell also personally subjected him to repeated sessions of waterboarding, walling, slapping and prolonged-standing sleep deprivation with shackles and chains that left permanent scarring.

Mitchell testified again this week that he did not use “enhanced interrogation techniques” or “EITs” on the other defendants and had relatively little interaction with them at the various black sites. As it did in 2020, the shadowy figure of a former CIA chief of interrogations referred to as “NX2” emerged as a focal point. Mitchell testified that agency cables and reports showed that NX2 employed unapproved techniques, including the use of ice water in “water dousing” and broomsticks and belts to intensify the pain of stress positions. Connell walked Mitchell through a CIA inspector general report that documented the torture inflicted on Mohammad's nephew, al Baluchi, including his use by NX2 to train aspiring interrogators on walling and slapping techniques.

“Hurt them until they tell you what you want to hear,” Mitchell said, characterizing NX2’s approach to interrogations. NX2 died at some point in 2003 after facing disciplinary measures by the CIA.

After court, Connell cited testimony by Mitchell this week in which he said “EITs” were not necessary for detainees like al Baluchi, who were not considered among the highest value in the CIA’s possession. He portrayed Mitchell as one important cog in a giant bureaucratic machine that would have run aggressively with or without Mitchell and Jessen.

“The portion of the program that Mitchell is defending has shrunk over time,” Connell told the small group of reporters.

Despite Mitchell's significant participation interrogating Mohammad, he was not present for the rectal rehydration that NX2 ordered at a dungeon-like “Location 2” before Mohammad was transferred to “Location 4.” There, Mitchell and Jessen waited to interrogate the CIA’s most prized captive. As he had with Nevin, Mitchell bickered with Sowards over whether Mohammad had been anally raped, though he acknowledged that the technique would have been humiliating and potentially traumatizing.

“It would just be wrong and illegal,” Mitchell said. “It shouldn’t have happened.”

Mitchell resumed another theme from January 2020, as well, repeatedly emphasizing that he and other interrogators only used “enhanced” techniques for condensed periods, mostly during the early days or weeks after the defendants’ capture in early-to-mid 2003. He said that he only used EITs to elicit urgently needed information about future terrorist threats, and that he even “punished” Mohammad with enhanced measures when he tried to talk about past events – including the 9/11 plot.

The goal of the program, he testified then and now, was to quickly transition detainees into full “debriefing” mode in which they cooperated with questioning.

In new testimony this week, Mitchell claimed that the years of less-coercive debriefing sessions would have led to an “extinction” of the detainees’ “conditioned fear” instilled by the earlier enhanced techniques. The detainees were repeatedly warned, however, they could return to the “hard times” if they failed to cooperate.

Sowards inquired why Mitchell had not used the “fear extinction” terminology in January 2020.

He asked if Mitchell was prompted to adopt the extinction terminology when preparing to testify with prosecutor Jeffrey Groharing, and being informed of the status of defense efforts to suppress the FBI statements. The government has claimed that the 2007 statements should not be suppressed because they were made voluntarily and were sufficiently “attenuated” from the past CIA treatment.

Mitchell said it was he who decided to mention the topic to Groharing during their pre-hearing meeting. He did so after reflecting on how many lawyers and the general public misunderstood the CIA program by focusing so much on the enhanced measures that were used for just a fraction of the time, Mitchell testified.

“It’s not even the point of the program,” Mitchell said.

Sowards asked Mitchell if any scientific work on “fear extinction” had come close to replicating the type of human experiences associated with the CIA’s rendition program.

“They haven’t,” Mitchell testified on Tuesday, adding that bans on of “human experimentation” would prevent such a study.

“It would be a war crime to study it,” Mitchell said.

Under questioning by Groharing the next day, Mitchell insisted that the defendants’ conditioned fear would have been “extinguished” even before their arrival at Guantanamo Bay because of the improved conditions in the later black sites. He testified that the defendants may have continued to experience fear, but not the type of conditioned fear that would prevent them from giving voluntary interviews with FBI agents on Guantanamo Bay in early 2007.

“I believe they would realize they were in a very different place,” Mitchell told the court Wednesday afternoon.

Groharing examined Mitchell from the remote hearing room in Virginia, as did Anisha Gupta, one of the civilian lawyers for Walid bin Attash. She told Mitchell that her team had only been able to interview – through government-established protocols – three CIA witnesses from the rendition program known only to the defense teams by unique functional identifiers, or UFIs. She said the program “took a toll on them” in the form of PTSD and nightmares, and asked Mitchell if he suffered any similar effects.

“I’ve never had a nightmare about the program,” Mitchell 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 September 2024.