Government Investigator Testifies on Limits to Accessing CIA Black Site Witnesses

Guantanamo Naval Base, Cuba – A criminal investigator with the U.S. Army last week revealed previously unknown details about how the government handles defense requests to interview covert CIA officers who have knowledge of detainee abuse at foreign black sites.

Special Agent James Hodgson testified that he served as a “glorified mailman” by delivering letters from one of the 9/11 defense teams to select CIA officers after the government prohibited the teams from independently contacting CIA witnesses. The CIA officers' identities have not been disclosed; they are known in court by "unique functional identifiers," or UFIs.

Under cross-examination by multiple defense lawyers on Thursday and Friday, Hodgson testified that he delivered sealed letters to prospective covert witnesses at their homes or government offices, at least twice handing over the letters to UFI witnesses in group meetings at CIA headquarters. Also present at the meetings was a representative from the CIA’s Office of General Counsel, who provided a second letter explaining the officers had a right to participate in the interviews – or to decline.

Under questioning by Matthew Engle, the lead lawyer for Walid bin Attash, Hodgson testified that he personally would never rely on “a legal adversary” to contact critical witnesses in his own criminal investigations.

“That’s no way to conduct an investigation, is it?” Engle asked on Friday morning.

“No, sir,” Hodgson responded, testifying from the court’s remote hearing room in Northern Virginia.

Defense lawyers have long claimed that the prohibition on accessing CIA witnesses has undercut efforts to paint a complete picture of their clients’ torture at the black sites because only a tiny fraction of UFI witnesses – a handful or fewer of the dozens sought by the teams – have agreed to participate in interviews through the government-run protocols. Lawyers say that witness participation typically results from trained investigators approaching individual witnesses confidentially, building trust and addressing security or other concerns associated with sensitive information.

Hodgson is a case agent for the separate military commission against Abd al Hadi al Iraqi, who pleaded guilty to war crimes against allied forces in Afghanistan and is scheduled to be sentenced on Guantanamo Bay later this year. Hodgson said he was tasked in 2019 to deliver sealed interview requests to more than 80 UFI witnesses sought by the defense team for Mustafa al Hawsawi, a defendant in the 9/11 case. In addition to delivering the letters, Hodgson's role was to document the UFIs responses in written reports. 

During questioning on Thursday by Navy Lt. Corey M. Krzan, a military lawyer for Ammar al Baluchi, Hodgson described a meeting at CIA headquarters in September 2019 in which all 12 employees receiving the requests declined to participate in interviews with the al Hawsawi team. When asked, the CIA personnel also stated they did not want to meet with the other four defense teams, Hodgson testified. (One of those four defendants, Ramzi bin al Shibh, has since been severed from the case due to a finding of mental incompetency.) Hodgson portrayed the meeting, which was held in an amphitheater, as somewhat tense.

“These people were none too pleased to be there," he told Krzan.

These details were disclosed near the tail end of the third week of the current four-week session. The judge, Air Force Col. Matthew McCall, has taken additional testimony on defense motions to suppress the confessions of the four remaining defendants made to FBI agents on Guantanamo Bay in early 2007, after they left the black sites where they were interrogated by the CIA. Since resuming the suppression hearings last September, McCall has said that restrictions imposed on the defense teams in presenting their cases will factor into his ruling on whether to admit the statements made to the FBI.

The defense teams claim the statements elicited by the FBI are the fruits of earlier CIA torture and conditioning; the prosecution claims they were made voluntarily by defendants who were proud of their alleged roles in the Sept. 11 terrorist attacks.

McCall initially planned to retire next month, but now appears all but certain to be the military judge who will finally decide the much-contested and momentous admissibility of the FBI statements. Last fall, he announced he would delay his retirement at least until mid-2024, which would enable him to hear testimony from most of the suppression witnesses agreed to by the defense and prosecution teams. This week, he told the parties that he was now planning to delay his retirement by an additional six months, meaning he will preside over 9/11 case hearings for the remainder of the year.

McCall is the fourth judge to wrestle with the thorny dispute. The prohibition on contacting percipient CIA witnesses was first imposed on defense teams in September 2017 – more than five years after the arraignment – and has been the focal point of pretrial litigation ever since.

The prosecution, then led by Army Brig. Gen. Mark Martins, claimed that the witness protocols balanced the demands of due process with protecting national security. Defense lawyers countered that the prohibition was an unconstitutional interference in their ability to present a defense and compromised their ethical requirements as defense counsel in a death penalty case. Nevertheless, at least some of the defense teams made UFI witness requests through the prosecution team in 2018 as litigation over the prohibition continued.

The first judge on the case, Army Col. James Pohl, codified the restrictions in what became the case’s fourth protective order governing the handling of information in the case. In that version of Protective Order #4, representatives of the government would contact prospective witnesses after defense teams listed the UFIs with whom they wished to speak. Any subsequent interviews agreed to by UFIs had to be conducted over secure phone lines.

At the same time, however, Pohl sanctioned the government for the restrictions. In August 2018, he preemptively suppressed the FBI statements, concluding that the prohibition would prevent the defense teams from being able to “present a rich and vivid account” of the defendants’ time in CIA custody and “functionally” precluded any investigation into the agency's Rendition, Detention and Interrogation or “RDI” program. In his ruling, Pohl noted that the defense teams had little success in securing UFI witness interviews since they were forced to make the requests through the prosecution.

In April 2019, his successor, Marine Col. Keith Parrella, reversed Pohl and ordered the defense teams to move forward presenting their suppression cases. He also signed off on a prosecution-suggested amendment to Protective Order #4 that allowed the defense teams to send sealed letters to prospective UFI witnesses. Testimony and oral argument at this and prior sessions made clear that the sealed-letter approach did not increase participation among the UFI witness population.

Hodgson's testimony was sought by the government not about his work as a top-secret letter carrier, but instead about his transport of other potential evidence. Army Col. Joshua Bearden, a member of the prosecution team, questioned Hodgson about separate tranches of evidence the government hopes to use at trial, including secret recordings made of the defendants at the Camp 7 detention facility on Guantanamo Bay, after their arrival from the black sites. Hodgson testified that, as a courier, he transported some of the recording discs from Guantanamo Bay to an unspecified location in Northern Virginia.

The four defense teams focused much of their questioning of Hodgson on the UFI protocols, his experience as a criminal investigator and his views on what constitutes an appropriate investigation.

Hodgson testified on Thursday and Friday that he played the lead role in distributing letters to the 88 UFI witnesses sought by the al Hawsawi team. On Friday morning, Walter Ruiz, who is al Hawsawi’s lead lawyer, asked Hodgson if he had ever conducted a “mass mailing” as the foundation of one of his own criminal investigations.

“I have not, sir,” Hodgson testified.

Hodgson acknowledged that, when conducting his investigations, he always prefers to talk to witnesses who were present for the crime and to visit crimes scenes in person. Not doing so would be “a deficiency,” he told Ruiz.

Engle’s cross-examination of Hodgson suggested that the government may have mishandled one instance in which a UFI witness appeared willing to speak with the bin Attash team. Hodgson testified that a witness known as “DC1” said she might talk with the team during a meeting with three potential UFI witnesses held at a CIA conference room in October 2019. (The other two declined.)

In his questioning, Engle informed Hodgson that the bin Attash team did not learn of the potential for DC1 to be interviewed for 18 months. The prosecution informed the team in January 2021 that all UFI witnesses it requested had declined to be interviewed or were dead, Engle said – even though Hodgson himself had a follow-up meeting with DC1 in May 2021.

Hodgson reluctantly acknowledged that the government’s communication to the bin Attash team was “not accurate.”

Outside court, both Ruiz and Engle said that their teams had interviewed a total of three UFI witnesses; DC1 was not one of them, Engle said. James Connell, the lead lawyer for al Baluchi, said his team had interviewed five UFI witnesses. He said his team did not partake in the sealed-letter option adopted by Parrella because it had already made all of its witness requests through the government. The lead lawyer for Khaild Shaikh Mohammad, Gary Sowards, declined to comment on his team's contact with UFI witnesses. 

During the first week of this hearing, the bin Attash team argued that the pool of potential UFI witnesses appeared to be implausibly low. In a lengthy presentation from the remote hearing room on Feb. 15, bin Attash counsel Anisha Gupta asked McCall to compel the government to produce UFIs for additional CIA personnel who had “direct and substantial contact” with her client at the black sites, as required by Judge Pohl’s early orders on CIA discovery.

Over the years, multiple defense teams have criticized inaccuracies, gaps and conflicting information in the indices provided to the teams to help them organize the tens of thousands of pages of discovery about the program and to identify relevant UFIs. Gupta told McCall that the "RDI index" provided by the government indicated that no CIA personnel had direct and substantial contact with bin Attash for about two-thirds of his time at CIA black sites between 2003 and 2006. She said these months-long gaps were inconsistent with summaries of CIA cables documenting interrogations of bin Attash in the same periods.

Gupta said that if additional UFI witnesses choose to be interviewed along with the three already spoken to, it would likely provide valuable information. 

“We heard from these RDI personnel about how [they] were diagnosed with PTSD from their exposure to the RDI program; how one night in one black site was enough to give an RDI individual nightmares,” Gupta said. “One of them talked about Mr. bin Attash's demeanor and reactions during a period of extremely harsh torture that wasn't reflected anywhere in the paper discovery.”

The prosecution has so far refused to produce CIA witnesses other than Drs. James Mitchell and Bruce Jessen, the two former contract psychologists who played key roles in developing the interrogation program. (FBI agent James Fitzsimmons, who functionally became a CIA agent when working at a black site, also testified at this hearing.) Defense motions to compel additional CIA witnesses, including those identified by UFIs, have been tabled until the parties work their way through the agreed upon witness list, which McCall expects to complete during the five-week hearing starting April 15 and the month-long hearing starting in mid-July.

McCall could eventually decide that the defense teams are entitled to examine certain covert CIA witnesses, regardless of their willingness to meet with the defense teams. However, he has hinted in recent months that he believes he will have the testimony he needs to make a ruling on suppression based on the agreed-upon witnesses between this hearing and next. The government, which has the burden to establish the voluntariness of the FBI statements, has a remaining witness list that includes two experts, a former FBI agent and a current FBI analyst.

Mitchell finished his public testimony on Monday of last week. He then testified in closed session on Tuesday and Wednesday before Hodgson took the stand in open court on Thursday.

Before Hodgson's testimony began, Connell told McCall that the prior days of Mitchell’s testimony highlighted the devastating impact of the investigative restrictions. He said the testimony created new leads and revealed gaps of potentially critical information that any “competent counsel” could investigate if they had access to relevant witnesses.

“This is what Protective Order #4 does to us,” Connell said. “We can’t do what would ordinarily be the next step.”

About the author: John Ryan ( 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.