Carol Rosenberg

But none of what Mohammed said during his 3 1/2 years in secret CIA prisons could be used in the military commission trial he would face on charges that he was the architect of the Sept. 11, 2001, terrorist attacks. So within months of his arrival at Guantánamo Bay, the Bush administration had FBI agents question him and other al-Qaida suspects to obtain fresh, ostensibly lawful confessions. Prosecutors called the new interrogators “clean teams.”

Now defense lawyers in the Sept. 11 case — which has been stuck in pretrial hearings since 2012 and will not go to trial before next year — are stepping up their arguments that those teams were not so clean after all.

They say that they have growing evidence that the FBI played some role in the interrogations during the years when the suspects were in the secret prisons by feeding questions to the CIA and that the CIA kept a hand in the case after the prisoners were sent to Guantánamo. The result, they contend, is a blurring of lines that undercuts the assertion that the confessions extracted after torture could be legally separated from those given by Mohammed and his four alleged accomplices to the FBI at Guantánamo.

The defense teams cite documents turned over to them under court order showing that the FBI was involved in the case when the prisoners were being held by the CIA, from 2002 to 2006. Then, after President George W. Bush had them transferred to U.S. military custody at Guantánamo, the CIA continued to control or influence the detention of Mohammed and the other men, the documents suggest.

The extent of the cooperation between the two agencies is a matter of dispute, some of it carried out in closed national security court hearings. But the intermingling of their work, defense lawyers say, means that the statements the suspects gave the FBI should be ruled inadmissible.

The intensifying battle over the confessions, which prosecutors say are critical to their case, is just one way that the legacy of torture continues to shadow the effort to get justice for the 2,976 people killed by the Sept. 11 hijackings. And it highlights how the military commission system has struggled to decide complex legal disputes, leaving the case unlikely to be decided even by 2021, two decades after the attacks.

“The clean teams were a fiction from the very beginning,” said Cheryl Bormann, lawyer for Waleed Mohammed Bin Attash, a Saudi-born man accused of serving as a deputy to Mohammed in the hijacking conspiracy. “There was no separation. It’s all one big team.”

The first public information about FBI and CIA collaboration on interrogations involving the five alleged Sept. 11 conspirators emerged in a December 2017 pretrial hearing that challenged whether one of the defendants, Mustafa al Hawsawi, was subject to trial by a military tribunal rather than a federal court. Hawsawi, a Saudi man who was captured in Pakistan in March 2003 with Mohammed, is accused in the joint capital trial of helping the hijackers with travel and finances.

Abigail L. Perkins, a retired FBI special agent, said at the hearing that she had reviewed some of Hawsawi’s statements to the CIA before she interrogated him in January 2007 as a member of a clean team, four months after his September 2006 transfer to Guantánamo.

She also said that while Hawsawi was held incommunicado at the CIA black sites, the FBI fed questions to CIA interrogators to ask their captives.

A partially redacted transcript of a national security hearing held last summer at Guantánamo also shows that FBI agents questioned Hawsawi during his time at a CIA black site but hid their affiliation from him. At that hearing, a prosecutor also disclosed that information the government had given defense lawyers to prepare for trial commingled FBI and CIA information that came from the Rendition, Detention and Interrogation Program, the formal name of the black sites, leaving the impression that it had all come from the CIA.

Prosecutors say the FBI agents who questioned the terrorism suspects at Guantánamo in 2007 did so independently of what happened during the period when the defendants were tortured.

Even though the U.S. government “put together the aspects of law enforcement, intel and military, for the purpose of gaining information, and ultimately obtaining a criminal case against these men in military commissions,” Ed Ryan, one of the prosecutors, argued in court, the work of the clean teams is “legally defensible” because of the magnitude of the government investigation in the aftermath of the terrorist attacks.

Whether to accept the prosecution’s argument will be for the new trial judge, Col. W. Shane Cohen of the Air Force, to decide.

Last summer, the first trial judge, Col. James L. Pohl, forbade the use of the FBI interrogations at Guantánamo Bay then retired from the Army. Another prosecutor on the case, Jeffrey D. Groharing, called the 2007 FBI interrogations “the most critical evidence in this case” and persuaded an interim judge, Col. Keith A. Parrella of the Marines, to reinstate them.

Now the new judge, who took over the case in June, plans to consider again whether each of the five defendants’ FBI interrogations should be admissible. Hearings on the question could start in September and run until March.

First, however, the judge must decide the delicate question of how much testimony to take from former black site workers, including agents and contractors whose identities the CIA is shielding by invoking a national security privilege. The defendants want the judge to hold an exhaustive hearing on what went on in the CIA prison network between 2002 and 2006 as a basis for deciding whether the clean-team statements are admissible.

In June, James Harrington, a lawyer representing one of Mohammed’s co-defendants, scolded Cohen at the judge’s first hearing for referring to the FBI interrogations as “cleansing” statements.

“Right now before the court I believe is an issue of voluntariness with respect to those statements,” he said.

Harrington offered a long-standing defense argument that anything Mohammed and the other suspects said at Guantánamo was essentially “a Pavlovian response” drilled into the defendants in their three and four years of torture at the black sites, where the lawyers contend that calculated abuse trained the defendants to later tell the FBI agents what the CIA had forced them to say.

That was the general defense approach until December 2017, when defense lawyers started seeing both classified and unclassified evidence they say demonstrates that the U.S. government was engaged in “one continuous course of conduct to obtain statements by torture and other cruel and inhuman, degrading treatment, including incommunicado detention,” according to James G. Connell III, a lawyer representing another defendant, Mohammed’s nephew, Ammar al-Baluchi.

In 2017, for example, the lawyers learned for the first time that the CIA had a role in how the FBI agents would conduct clean-team interrogations.

The FBI agents were required to write up their interviews not on a standard FBI 302 form, the stock in trade of bureau record-keeping, but as a letterhead memorandum on a CIA laptop. The agents were instructed to segregate claims of torture and other CIA mistreatment on a separate memo, meaning they were absent from the FBI’s descriptions of confessions by Mohammed and the others at Guantánamo in 2007.

Notes from Hawsawi’s interrogation helped reveal that he had earlier been held incommunicado at Guantánamo, when the CIA operated a black site at the military base and hid its prisoners from the International Committee of the Red Cross, in 2003 and 2004.

“Our position is not that the CIA engaged in torture and other cruel, inhuman and degrading treatment and then the FBI did something different,” said Connell, who has drawn up a list of 112 pretrial witnesses to try to prove his point. “Our position is that the United States, as a whole, had a plan, a scheme or a program — however you want to describe it — to obtain statements from Mr. al-Baluchi by torture and other cruel, inhuman and degrading treatment.”

On Friday, lawyers for families of people killed in the Sept. 11 attacks, who are seeking testimony from three of the alleged plotters, reported to a federal judge in New York that Mohammed has declined to be deposed by them on what he does or does not know about Saudi Arabia’s role in the attacks as long as his Guantánamo trial is a capital case.

This article originally appeared in <a href="https://www.nytimes.com/2019/07/29/us/politics/september-11-confessions-guantanamo.html" id="5846e937-6ce5-37a9-afed-df80a23e3691">The New York Times</a>.

Lawyers Press Case That 9/11 Confessions Given to FBI Are Tainted

GUANTÁNAMO BAY, Cuba — By the time the CIA delivered Khalid Sheikh Mohammed to the military prison at Guantánamo Bay in 2006, it had already extracted confessions from him through interrogations that included waterboarding, rectal abuse, sleep deprivation and other forms of torture.

On Thursday, that captive, John Walker Lindh, is scheduled to leave a federal prison in Terre Haute, Indiana, released on probation after serving 17 years of a 20-year sentence for providing support to the Taliban.

The case of Lindh, who converted from Catholicism to Islam at 16 and first left his California home at 17 to study Arabic in Yemen more than three years before the Sept. 11, 2001, terrorist attacks, has stirred questions and controversy from the start. His journey took him to Pakistan in 2000 and later to Afghanistan, where he spent time at an al-Qaida training camp as a Taliban volunteer.

The government has characterized Lindh in recent years as holding on to extremist views, and his release has now brought objections from Spann’s family and elected officials and raised questions about how he can be safely reintegrated into society without some kind of formal government program for rehabilitating former jihadis.

“What training is provided to parole officers or supporting nongovernmental partners to recognize the signs of violent radicalization and recidivism?” Sens. Richard C. Shelby, R-Ala., and Maggie Hassan, D-N.H., wrote in a letter last week to Hugh J. Hurwitz, the acting Bureau of Prisons director, questioning the wisdom of Lindh’s release.

Lindh, now 38, his parents, lawyers and prosecutors all declined to discuss where he will live or his other plans after prison, where he has been described as a studious, standoffish prisoner. In 2012, he joined an American Civil Liberties Union lawsuit that won the right for Muslim prisoners at Terre Haute’s high-security Communications Management Unit to pray in groups.

As an American citizen, he was tried in federal court, unlike citizens of other countries who were also picked up in Afghanistan and Pakistan but who ended up in the military prison at Guantánamo Bay, Cuba. At his sentencing in October 2002, he condemned “terrorism on every level, unequivocally,” said he made a mistake by joining the Taliban and denounced Osama bin Laden’s terrorist attacks as “completely against Islam.”

But two leaked U.S. government intelligence counterterrorist assessments first published by Foreign Policy magazine in 2017 cast Lindh in a different light. A 2017 report by the National Counterterrorism Center titled “U.S. Homegrown Violent Extremist Recidivism Likely” said without elaboration that as of May 2016 Lindh “continued to advocate for global jihad and to write and translate violent extremist texts.”

A 2017 Federal Bureau of Prisons intelligence assessment, which included a photograph of Lindh with a shaven head and a bushy brown beard, said he had earlier made supportive statements about the Islamic State group.

“From all I’m hearing inside of government, he is still as radical as he went in,” said Seamus Hughes, who is the deputy director of George Washington University’s program on extremism.

As conditions for Lindh’s release, Judge T.S. Ellis III of the U.S. District Court in Alexandria, Virginia, who handled Lindh’s 2002 trial and guilty plea, has imposed sweeping restrictions.

Lindh, who left California for Yemen in July 1998, two months before Google was founded, will be barred from going online or owning a web-capable device without prior permission of his probation officer. If he is eventually granted permission to own one, it would be on the condition of continuous monitoring of his online activities as well as using only English in his communications.

Lindh will also be barred from traveling internationally and getting a passport or any other kind of travel document. The travel ban thwarts any immediate possibility of his moving to Ireland, whose citizenship he acquired while in prison through his father’s mother, who was born in Donegal.

Other probation provisions require mental health counseling and forbid Lindh from communicating “with any known extremist” or owning, watching or reading “material that reflects extremist or terroristic views.”

While Lindh’s presence in Afghanistan as a member of the Taliban during the 2001 invasion makes his case exceptional, some of the same issues raised in connection with his release apply to hundreds of other people who have been imprisoned in the United States for jihad-related terrorism crimes since 2001.

“In many ways, he’s a case study of a larger issue they have in government: They arrested hundreds of people since 2002, but there’s not a system in place to address these individuals,” Hughes said.

In all, 346 people have been charged and convicted of jihadi terrorism related crimes since the 2001 terrorist attacks, according to David Sterman, an analyst at New America who studies terrorism and violent extremism, citing a database maintained by the research organization. About one-fourth of those prisoners, 88, have been released, he said. About half should be released by the end of 2025, with 19 of them, including Lindh, on the path for release this year and next, Sterman said.

Hughes earlier worked on how to counter violent extremism in his capacity as a staff member at the National Counterterrorism Center, which was established in response to the 2001 terrorist attacks. So far, however, he said, the Bureau of Prisons, Justice Department, FBI and court probation offices have yet to develop a single strategy for helping former jihadis re-enter society.

Because of the vacuum, he said, the best hope for Lindh is that his probation officer finds a Muslim former federal prisoner — someone who has conservative beliefs but is not radical — to help him navigate society.

“Ideally, you’d team him up with a mentor, somebody who perhaps had the same experiences as he may have had and came out the other side better of because of it,” Hughes said.

Johnny Spann, the father of the CIA operative who was killed in Afghanistan, remains bitter about the Lindh case and said he is distrustful of the decision to let Lindh go. His son is buried at Arlington National Cemetery, about 8 miles from the Alexandria courthouse where Lindh was charged.

“We’ve got a traitor that was given 20 years, and I can’t do anything about it,” said Spann, a real estate dealer in Winfield, Alabama. “He was given a 20-year sentence when it should’ve been life in prison.”

Spann’s son, who went by Mike, was killed at the start of an uprising by prisoners inside a mud-walled 19th-century fortress at Qala-i-Jangi in northern Afghanistan after he questioned Lindh, videotapes at the time showed. But even before Lindh’s guilty plea to two charges — to providing support to the Taliban and to carrying a rifle and grenade — the government offered no evidence that he participated in the revolt.

Lindh spent weeks in U.S. military custody after being captured. He was interrogated aboard a Navy assault ship, before being taken to the United States on Jan. 23, 2002, to face trial. By then, the Camp X-Ray detention site at Guantánamo Bay was crammed with 158 foreign prisoners. Most of those men, many of them captured in similar circumstances, would eventually be repatriated without charges while Lindh served his sentence in the United States.

It still enrages Spann that, a decade ago, Lindh’s father, Frank Lindh, said in a CBS interview that both their sons were “victims of the same circumstances.”

“Mike Spann was a person who believed in the rule of law,” the elder Spann said of his son, who joined the CIA from the Marine Corps. “Mike Spann would’ve never agreed for a traitor to have got 20 years.”

Karen J. Greenberg focused on the Lindh case in her 2016 book, “Rogue Justice: The Making of the Security State.”

“He devoted his years in prison to becoming a student of Islamic texts,” said Greenberg, who is the director of the Center on National Security at Fordham University School of Law. “I think the best you can hope for him is that he finds a way to live a quiet life, along those lines, doing whatever it is he wants to peacefully do.”

This article originally appeared in <a id="7757381a-34d0-37c8-a83c-06702483b5dc" href="https://www.nytimes.com/2019/05/21/us/politics/american-taliban-john-walker-lindh.html">The New York Times</a>.

John Walker Lindh, known as the 'American Taliban,' is set to leave federal prison this week

WASHINGTON — He was the “American Taliban” captured during the invasion of Afghanistan in the fall of 2001. Pictures showed him as a gaunt, filthy, 20-year-old held in the aftermath of a prison uprising that claimed the first U.S. casualty of the war, a 32-year-old CIA officer named Johnny Micheal Spann.

The decision by the U.S. Court of Appeals for the District of Columbia Circuit was a major setback in the oldest death-penalty case at Guantánamo Bay, and yet another twist in a winding and fraught case that has come to symbolize the government’s difficulties in pursuing prosecutions of detainees through the military tribunal system.

Abd al Rahim al-Nashiri, 54, who has been in U.S. custody since 2002, has been represented by military commission defense lawyers since 2008 and was formally charged in 2011. Al-Nashiri, a Saudi, is accused of being the architect of al-Qaida’s suicide bombing of the Navy destroyer Cole off Yemen on Oct. 12, 2000. Seventeen U.S. sailors died, and dozens more were wounded.

But more than seven years after al-Nashiri’s arraignment, the case is still in pretrial hearings to determine what law and evidence would apply at a capital trial by the military commission. The decision means a new military judge will have to revisit defense challenges to the charges, what evidence prosecutors must provide al-Nashiri’s lawyers and fundamental constitutional questions about the legality of the military commission system.

The crux of the issue confronting the appeals court was whether the judge, the now-retired Air Force Col. Vance Spath, was wrong not to disclose that he had applied for and obtained an immigration court job with the Justice Department while sitting on the case, which was being jointly prosecuted by Justice and Defense department lawyers.

The three-judge panel found that he was and threw out all of Spath’s decisions from November 2015 to February 2018, when the judge suspended the case pending higher court review. His Justice Department job offer was still secret at the time.

Judge David Tatel wrote in the appeals court’s 31-page opinion that the court recognized “the burden” that the decision “will place on the government, the public, and al-Nashiri himself.”

“Despite these costs, however, we cannot permit an appearance of partiality to infect a system of justice that requires the most scrupulous conduct from its adjudicators,” Tatel said.

Ron Flesvig, a spokesman for the military commissions, said Tuesday that prosecutors had no immediate comment on whether they would seek a review by the full appeals court of the question or challenge the decision at the Supreme Court, developments that could even further delay the start of the death-penalty trial. Spath did not respond to a message left seeking a comment at his Arlington, Virginia, immigration court office.

Capt. Brian Mizer, a defense lawyer for al-Nashiri, said based on the latest development it would be nearly impossible to predict when the case would come to trial.

“I would hate to hazard a guess,” Mizer said. “Eleven years of litigation to get where we are now would suggest Mr. al-Nashiri’s trial defense team may be in high school right now. Which is a tragedy for everyone involved.”

A survivor of the Cole bombing, retired Navy Senior Chief Joe Pelly, said he was “kind of shocked” by the decision. He added that he was particularly disappointed for “the parents of the children that were killed,” a reference to the young sailors who were killed in the bombing, which struck the ship’s galley for enlisted sailors.

“I just believe that we, the Cole survivors, and the Gold Star family members have just been a pawn in this whole process,” he added. “But hopefully our time shall come that we can move forward in this case.”

Mizer, a Navy reservist, was returned to the case last year at Spath’s request. All of al-Nashiri’s civilian counsel quit the case in October 2017 in an ethics dispute with the judge.

His civilian lawyers had found a microphone hidden in the wall of their meeting room at the U.S. Navy base prison, but Spath prohibited them from investigating its purpose or telling their client about it as a potential violation of attorney-client confidentiality because the information was classified. Prosecutors eventually disclosed the discovery in a court filing that called the microphone a “legacy” listening device, and said nobody eavesdropped on the team.

The three-judge panel faulted Spath, case prosecutors and a Pentagon appeals panel called the U.S. Court of Military Commission Review. “Criminal justice is a shared responsibility,” the panel wrote, adding that in this case, only al-Nashiri’s defense team had shouldered it.

First, the judge failed to disclose his job pursuit. Later, prosecutors rejected a request by al-Nashiri’s lawyers for information about Spath’s quest to find a civilian job before retirement, and the Pentagon panel agreed that defense lawyers were not entitled to it.

That information emerged through a Freedom of Information Act request for Spath’s immigration court application and supporting materials filed by the news organization McClatchy. Defense lawyers appended it to their appeal.

The court found it “especially troubling” that Spath issued most of his classified rulings in the national-security case “in a flurry” after Jeff Sessions, then the attorney general, agreed to his appointment to be an immigration judge in March 2017.

At military commissions, prosecutors can present the judge directly with classified information and get permission to use a substitute for original evidence, citing the need to protect national security.

To undo those secret substitutions, the appeals court turned the clock back.

Once back on track, a new judge will have to reconsider Spath’s invalidated decisions and revisit a prosecution request to pre-admit hundreds of pieces of physical evidence FBI agents tagged from the wreck of the ship in Aden, Yemen, as well as several safe houses in Aden. In both instances, hearing testimony showed, sailors on the heavily damaged destroyer and Yemeni police or intelligence agents got to the evidence first.

Also apparently thrown out was a closed-court deposition Spath took at Guantánamo Bay from a confessed Qaida terrorist. Ahmed Mohammed Ahmed Haza al Darbi testified against al-Nashiri before being repatriated in May to serve a prison sentence his native Saudi Arabia.

It was unclear how far-ranging the effects of the Cole case decision would be.

But a defense lawyer in the Sept. 11 capital case, James Connell, said Tuesday that he would renew an objection to that case’s trial judge, Col. Keith Parrella of the Marines, because the colonel had done a 2014-15 fellowship as an on-loan prosecutor at the counterterrorism section of the Justice Department’s National Security Division.

They had argued that the colonel’s earlier role presented a particular ethical conflict because four of the nine prosecutors on the Sept. 11 case work for the same unit.

Government lawyers defending Spath’s decisions had argued that the Executive Office for Immigration Review was a far-removed division of the Justice Department, so the colonel had no obligation to disclose his job pursuit.

The appeals panel, however, found that “the attorney general was a participant in al-Nashiri’s case from start to finish: He has consulted on commission trial procedures, he has lent out one of his lawyers and he will play a role in defending any conviction on appeal.”

This article originally appeared in <a id="64438479-90a7-3e16-a823-3f7a879e9c83" href="https://www.nytimes.com/2019/04/16/us/politics/cole-bombing-case-judge.html">The New York Times</a>.

Court throws out 2 years of judge's decisions in U.S.S. Cole tribunal

GUANTÁNAMO BAY, Cuba — A federal appeals court Tuesday threw out more than two years of a military tribunal judge’s decisions in the case of the man accused of plotting the bombing of the destroyer Cole, finding that the jurist wrongly hid his pursuit of an immigration judge job while sitting on the war crimes case.

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Carol Rosenberg

Articles written by the author

Lawyers Press Case That 9/11 Confessions Given to FBI Are Tainted

John Walker Lindh, known as the 'American Taliban,' is set to leave federal prison this week

Court throws out 2 years of judge's decisions in U.S.S. Cole tribunal