Thread by @GitmoWatch

Week 2, day 2 of the 57th 9/11 pretrial hearings at GTMO Bay began around 0900. Follow here for updates.

Today we heard arguments from Mustafa al Hawsawi’s counsel on suppressing his 2007 statements made to the FBI after his CIA black site incommunicado detention.

Walter Ruiz for Mustafa al Hawsawi began his suppression arguments invoking Pros Trivett's baseball analogy from last week. Trivett said he'd throw a pitch right down Broadway with how secure the FBI interrogations of the black site detainees were.

Ruiz told the MilComs the government's pitch was doctors, like pitchers used to do in baseball, covering the ball in grease, vaseline, sometimes using razor blades to change the ball.

But here it's the government's case that has been doctored -- with blood, sweat, tears, urine, and excrement.

He told the court to apply an individualized analysis and pay attention to the use of language. The government has attempted to rebrand torture to "enhanced interrogation techniques."

Ruiz quoted Dr. James Mitchell from a podcast: "We don't say torture because torture is a crime."

Ruiz: The government tries to differentiate interrogations v. debrief -- there is no difference to Mr. al Hawsawi, so I will call them "question and answer sessions."

Ruiz encouraged Judge Schrama to visit Echo II, where his client was held for 4 months in CIA detention, where the FBI "clean team" interrogations occurred, where the defendants still meet with their counsel. McCall visited the site prior to al Baluchi's suppression ruling.

Military members often do "staff rides" to battle sites for educational purposes. Judge Schrama should be familiar with the idea of visiting a location to experience a fuller environment -- sights, sounds, smells, etc.

Ruiz showed the war court photos of black sites -- all set up in similar configurations...same furniture, etc.

Ruiz asked Schrama to adjust his lens -- Hawsawi was meeting rep from a foreign gov't (US) in '07 after being held/tortured by the same gov't for years. What's the difference between CIA, DoD, DoJ to someone not from here? Most Americans can differentiate but how could Hawsawi?

The government has reduced Hawsawi's time at CIA Echo II as a "pit-stop" but Ruiz explained, using the government's own appeal of al Baluchi's suppression in the CMCR, that his case was different bc al Baluchi was never held at GTMO prior to the 2007 interrogation.

The government argued al Baluchi never having been to Echo II before was an "important factor" in contrast to Nashiri's LHM suppression. Nashiri was also held at CIA black site Echo II at GTMO.

Ruiz guided the war court through Hawsawi's experience from black site rendition travel to arrival at Guantanamo, to his experience at the Camp 7 top secret detention facility.

He used classified photos not available to the public, medical records diagnosing Hawsawi with a depressive disorder just days before FBI questioning, and testimony from special agents, the former Camp 7 commander, and psych "WK5I."

Ruiz explained process for rendering men to a new place included cavity searches. The unclass record called one such search "unduly rough" but Ruiz showed Schrama the classified version of the report he likened to aggravated assault. This is the "rebranding" he noted earlier.

Hawsawi received a clean bill of health just after capture in 2003, just some nasal allergies but a normal rectal exam.

During his first stay at Guantanamo, the Government questioned him 142 times in the same location as his 2007 questioning. This included questioning by actual FBI employee SA Fitzsimmons.

Ruiz informed the court in his al Baluchi suppression ruling, Judge McCall noted the same configuration of Echo II as black sites -- though Ammar al Baluchi was never held in CIA Echo II, it still would have reminded him of other CIA black sites.

Ruiz invoked multiple instances of law enforcement expert testimony that a different person, place, and time are essential to proper attenuation. SA Hodgson even stated conducting an interview in the same place would defeat the purpose of a cleansing statement.

Though Hawsawi had a clean bill of heath in March 2003, just three years into his incommunicado CIA detention he was diagnosed positive for hepatitis C and recommended for surgery for his rectal prolapse, which he ultimately underwent at GTMO.

Ruiz argues the prolapse was caused by CIA treatment the government calls "unduly harsh" in unclassified documents but far harsher in the classified record.

Ruiz explained his client had no reason to believe his conditions of confinement had actually changed based on his Sep 2006 arrival at GTMO Bay. Showing the court tarmac photos, Ruiz asked the judge to note the number of personnel and the attire of the detainees.

There was nothing to suggest to Hawsawi he was actually in DoD custody instead of CIA.

In Jan 2007, around the time of FBI questioning, the Camp 7 psych expressed concern about mental degradation of the detainees, but also noted timing of treatment would have to be right in terms of "national security."

Hawsawi's depressive disorder was so concerning, he had psych visits two times a week. He also lost more than 25lbs in his (2nd) first 4 months at GTMO (Sep 2006-Jan 2007) Records indicated he was less than 85% of his ideal weight.

Ruiz informed the court it is disingenuous for the government to omit these details as they support there was no meaningful change between CIA and DoD custody for the men.

As Judge McCall noted in his suppression ruling, conditions changed for the worse for the men. They were isolated and didn't believe they were free from the CIA RDI program.

The change in circumstances were not sufficiently meaningful to substantiate voluntariness.lawfaremedia.org/article/new-fa…

Ruiz said it was the government's choice to not call psych techs to testify. They only provided background summaries which Judge McCall in his suppression consideration found to be insufficient for determining backgrounds or biases.

Ruiz tied this into the AE524, prohibition on investigations issue -- impossible to create a rich and vivid account of the torture program without access to the people.

Ruiz shared that "NX2," who Dr. Mitchell nicknamed "The New Sheriff," was Hawsawi's primary interrogator. Ruiz argued he was the most depraved in the torture program.

Ruiz also touched on the "interconnectedness of the FBI and CIA during the RDI program. The government has argued they didn't need information from black sites to prosecute but Ruiz offered example after example of the cooperation and collaboration between the two agencies.

He added, the FBI had no independence from the CIA and was constantly asking "May I please...? May I please...?"

Location 2, also known as Cobalt, was described by one CIA employee as an "old Nazi concentration camp. Ruiz says it's an appropriate description as a prisoner once died of hypothermia there.

Ruiz added to the description of Loc 2: like a dungeon, cells were like horse stalls, windows had two coats of black paint, there was non-stop loud music, buckets for waste. One CIA employee said Loc 2 itself was an enhanced interrogation technique.

NX2, Hawsawi's primary interrogator was described as having the mentality that you break them until they reach absolute obedience. Even Mitchell and Jessen considered NX2's program different.

NX2 was said to have had 'accolades,' none of whom have been called as witnesses or allowed to be interviewed by defense.

McCall in al Baluchi's suppression decision also noted the haphazard way EITs were documented or not. Defense don't have access to a complete record of what happened to their clients.

Ruiz reviewed -- his client was held at 7 black sites, underwent 1081 question/answer sessions, by more than 88 people. At one point during interrogation, he called out for God.

The government has called Hawsawi a sophisticated money man for al Qaeda but Ruiz points out the CIA had assessed Hawsawi's IQ as average to low-average. He needed help with opening a bank account and didn't understand how money transfers worked.

In one unclassified CIA cable, it was stated Hawsawi was not an HVD with a significant role in AQ.

Ruiz also outlined the medication Hawsawi was on during the period of the FBI questioning -- a cocktail of pain killers and other pills to combat his rectal injury. He has multiple surgeries following his arrival at Guantanamo in 2006.

Ruiz again invoked McCall's ruling: It's easy to focus on EITs which are outside the norms of US custody, but the isolation these men faced for years is just as egregious.

Ruiz closed with a recap of his previous arguments -- statements obtained by torture should be excluded. Hawsawi became compliant, even eventually thanking his captors for not torturing him while knowing interrogators were just a call away.

Hawsawi was disappeared from the world until late 2006. The isolation was the hardest part of his detention.

The Miranda issue is dispositive but at very least a factor that should be weighed by the judge. Length of detention should carry a heavy weight.

Physical punishment, lack of food, sleep, should also weigh for suppression.

The government hasn't come close to meeting their burden to admit the statements.

Mustafa al Hawsawi came into US custody healthy and is now traumatized and injured from sexual assault.

Prosecutor Trivett speaking from the Remote Hearing Room in Northern Virginia asks if the government will have an opportunity to respond.

After Engle argues for suppression of Khalid bin Atash's statements, the judge said MilComs will have heard over 60 hours of arguments -- "not sure what else parties can say that hasn't already been said" though he may offer an opportunity for another supplement written briefing.

MilComs in recess until 0900 Wednesday.

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