A Month at Guantanamo Proves 'Crushing' and 'Corrosive' as Battle Over Incriminating Evidence Endures

Guantanamo Naval Base, Cuba – Kimberly Waltz has long been a fixture in the back of the Guantanamo Bay courtroom over the course of her long career as an FBI intelligence analyst, sitting behind the team prosecuting those accused of planning the Sept. 11 terrorist attacks.

This past week, she took a seat at the front of the courtroom as a witness supporting the government’s efforts to protect the admissibility of evidence it deems critical in the prosecution of the four detainees facing the death penalty for their alleged roles.

Waltz herself did not elicit any incriminating statements from the defendants on Guantanamo Bay in early 2007, about four months after they arrived from CIA black sites. However, she was nearby during the interviews, watching from a remote observation room in the detention facility, she testified Tuesday.

From that room, Waltz witnessed FBI agents engaging the defendants in cordial interviews that included constructive reviews of evidence, friendly banter and shared meals, she said.

“It was really extremely relaxed,” Waltz said of the January 2007 interviews of Khalid Shaikh Mohammad, who stands accused of masterminding the attacks.

“My observation was that it was voluntary,” Waltz told the government’s lead prosecutor, Clay Trivett.

Waltz largely repeated the accounts of earlier FBI witnesses who led what the government contends were “clean” interrogations of the defendants – free of the “coercive” or “enhanced” techniques used earlier by the CIA. In the 2007 interviews, FBI agents advised the detainees that they did not have to participate and would not be returned to the black sites if they declined, Waltz testified, echoing several of her current and former colleagues.

The government offered Waltz's testimony to counter defense claims that their clients’ statements to the FBI could not have been voluntary in light of the preceding years of isolation and relentless, abusive conditioning.

Whether to admit the defendants' statements to the FBI following their arrival at Guantanamo in 2007 after years of CIA black site interrogations is the core dispute the judge, Air Force Col. Matthew McCall, must decide for the historic prosecution to advance. He is also relying on the ongoing suppression hearing to assess whether investigative and other evidentiary restrictions on the defense teams unfairly burden their right to present a defense. 

Since they resumed last September, significant parts of the suppression hearings have focused on the negative impact of a restriction imposed in 2018 that bars defense teams from independently contacting CIA witnesses who have knowledge of torture and other abusive treatment of the defendants at the black sites. That order is known as "Protective Order #4."

Waltz was also called by the prosecution this week to cover new ground on a separate category of top-secret evidence governed by "Protective Order #3," which was issued in the month prior to Order #4. Waltz’s testimony was largely confined to classified sessions closed to the public on Wednesday and Thursday.

Her testimony related to 118 intercepted phone calls allegedly involving conversations between the defendants in the five months before the 9/11 attacks and in the month thereafter. Army Col. James Pohl, the first judge in the case, in July 2018 issued a protective order that restricted any team from referencing the calls or asking questions in ways that could reveal or “conceivably elicit information regarding the classified source or method” associated with them.

The calls were disclosed in court for the first time in March 2019, during oral arguments about the scope and legality of the protective order. James Connell, the lead lawyer for defendant Ammar al Baluchi, argued to Pohl’s successor that Protective Order #3 was an overbroad and “Kafkaesque” restriction on defense teams’ ability to probe potentially critical evidence in the case. That judge, Marine Col. Keith Parrella, declined to rescind the protective order.

Waltz’s testimony this past week was delayed as legal teams skirmished over its acceptable scope. Though scheduled to begin Monday morning, defense attorneys said that they needed additional guidance on what could be asked of Waltz about the calls, whether in open or closed session. McCall moved the proceedings into a closed session to weigh their concerns.

On Tuesday morning, multiple defense teams objected to Waltz testifying about certain categories of evidence – including the phone calls – that did not appear to be directly tied to the admissibility of the FBI statements. Walter Ruiz, the lead lawyer for Mustafa al Hawsawi, argued that Waltz’s testimony on the intercepted calls would also improperly encompass litigation over the government’s efforts to preadmit evidence.

“It’s pretty unwieldy to do that, and to do so effectively,” Ruiz said.

Ruiz argued that there was information to suggest the phone-call evidence was “derived from torture." He did not elaborate in open court.

Waltz also was set to testify about her knowledge of financial records and other evidence pointing to links between the defendants and the hijackers, serving as a witness to support various areas of evidence for the government. 

Navy Lt. William Xu, one of Mohammad’s military defense lawyers, told McCall that the government appeared to be putting on parts of its “case in chief” to help support its claim that the 2007 statements to the FBI were reliable. He argued that whether a suspect’s statement is reliable is unrelated to whether it was given voluntarily, and that “torture-derived confessions” are inadmissible even if they contain truthful information.

“We just think that’s grossly inappropriate,” Xu asserted.

Also in dispute is the foundational evidence of the intercepted phone calls. The prosecution has provided the defense teams with written substitute evidence related to the calls, in lieu of providing the actual sourcing for how they were collected. Under the law, a military judge can only approve substitute evidence if it puts the defense teams in substantially the same position as if they had the original evidence. Neither Pohl nor Parrella ruled on the adequacy of the substitute, leaving the matter for McCall. Xu argued that McCall should rule on this issue before hearing testimony on the calls.

McCall sided with the government. He intermittently overruled a variety of defense objections throughout Trivett’s expansive questioning of Waltz in Tuesday’s open session.

Waltz gave only limited open testimony on the calls, which she said she first learned about in 2009. Trivett displayed on the courtroom monitors a spreadsheet that listed the 118 calls by date, start time, duration and phone number. Waltz testified that an FBI linguist completed a verbatim transcript of each call. She said that 26 bolded entries from the spreadsheet reflected calls that the prosecution has identified for “affirmative use” in its case.

At the start of this hearing last month, the parties appeared poised to complete witness testimony in the suppression battle during the five-week session schedule to start April 15. However, it now appears certain that significant amounts of witness testimony will bleed into the month-long hearing calendared to begin July 15. McCall has twice delayed his retirement and now plans to preside over hearings for the remainder of the year.

This hearing was just the second four-week session in the long history of the Sept. 11 military commission, which dates to the May 2012 arraignment, at least. The first month-long hearing took place between September and October of last year, when McCall resumed testimony after a protracted period in which the parties failed to reach plea deals. The suppression hearing first began before the case's third judge, Air Force Col. Shane Cohen, in September 2019 before being interrupted by Covid-19 restrictions.

On Monday of this week, Trivett told McCall that the prosecution would be requesting an extension for the filing of its final pleading on the suppression dispute. He said that his team will seek a deadline of 30 days after the defense teams file their supplemental pleadings – which will be based on the recent and still-anticipated testimony. He estimated the government in September or October will present its final position on the admissibility of statements made by the accused to the FBI on Guantanamo after enduring years of captivity with the CIA. Sept. 11 will be the 23rd anniversary of the attacks.

“We’ve been crushed,” said Trivett, the prosecutor. He described the current pace and workload of the case as "crushing" and as intense as at any point "during the last decade of the litigation.”

Trivett also expressed concern over the judge’s shifting retirement plans. He said the prosecution may want to voir dire McCall about whether he would seek to postpone his retirement yet again and possibly preside over a trial.

“I don't imagine I will be the trial judge,” McCall said, adding that he didn’t think the case was close to trial.

“But because we're not that close to trial, after having gone for so long, is why we're going to continue at this pace,” McCall said.

Trivett said that the prosecution was struggling to make "strategic prosecutorial decisions” due to some of the uncertainty over McCall’s plans. He said the government was waiting to file a new motion for the setting of a trial date with whomever McCall’s successor might be.

“If this case doesn't go to trial in 2025, it may never go to trial,” Trivett said.

One issue on which all counsel seem to agree is that the 9/11 case has become exhausting since the resumption of the suppression hearings. Connell, the lead lawyer for the al Baluchi team, said five team members have had to take a sick day during the hearing.

“Guantanamo is a toxic, corrosive environment, and people are away from everything that they know,” Connell said.

McCall plans to have the defense teams cross-examine Waltz at the start of the next session. He said he wanted the defense teams to first submit to the prosecution a proposed list of questions that may be prohibited by Protective Order #3 to receive clear guidance on what can be asked about the intercepted calls.

On Friday, McCall told the parties that this process would establish a “clean record” on the negative impact of the protective order. However, two of the teams expressed a reluctance to do so. Gary Sowards, the lead lawyer for Mohammad, told McCall that operating under the government’s evolving classification guidances had “become untenable,” though he said the team would comply with the judge’s order.

Ruiz told McCall that his team may choose not to submit questions, even if ordered to. He said that McCall’s repeated expression of his own frustrations over classification complications was “not enough” because the judge was still failing to address “the root problem.” He said that submitting questions in advance would signal again that the proceedings would bend “and even break” to satisfy the demands of government agencies intent on controlling the flow of information in the case.

“That’s the message they will get,” Ruiz said.  

Ruiz contended that Pohl, the first judge, came up with an appropriate remedy for Protective Order #4's restrictions on contacting CIA witnesses by suppressing the FBI statements, obviating the need for lengthy hearings over their admissibility. At multiple times throughout the month, Ruiz urged McCall to rule on his team's motion to reinstate Pohl's earlier suppression of the evidence. 

"I'm going to continue to bang that drum," Ruiz said.

McCall devoted the rest of Friday to oral arguments on some of the case’s pending motions. Among them was a defense effort to compel the government to provide more “unique functional identifiers,” or UFIs, for covert CIA witnesses from the black sites. Under Protective Order #4, defense teams must request interviews from these witnesses from the government. The teams have had little luck in securing participation from UFI witnesses under the protocols, but they also contend that the universe of potential UFI witnesses is significantly larger than those identified by the government.

McCall suggested that, as the suppression hearings move forward, he may consider the necessity of some covert witnesses testifying – which the government has thus far opposed. Near the end of court on Friday, McCall asked the parties to suggest UFI witnesses of the highest “priority” based on their prominence in the CIA discovery provided to the defense teams.

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.