Thread by @carolrosenberg

Good morning from Camp Justice at Guantanamo, where the loudspeakers are playing "colors" -- a recording of the Star Spangled Banner. Court begins at 9 a.m. with more testimony from an FBI agent about how the bureau fed questions to detainees in the black sites.

The 9/11 pretrial hearing has resumed. KSM and his nephew Ammar al Baluchi are attending for more suppression motion questioning. An anonymous Army major prison lawyer presents waivers from Walid bin Attash, Ramzi bin al Shibh and Mustafa al Hawsawi. Judge Cohen accepts them.

Judge Cohen announces that the chief war crimes prosecutor, Army Brig. Gen. Mark Martins, notified him yesterday that he has found overtime funds for nonsalaried, government-paid court personnel as a stopgap measure.
(The war court bureaucracy has run out of FY19 money.)

Judge Cohen says he's considering holding longer court days next week because this hearing has a hard stop on Saturday, Sept. 28 -- when the plane arrives -- and the judge doesn't want to adjourn in the middle of somebody's testimony.

For the future, the judge says, the prosecution should sort out MP guard force availability, in case he wants to hold Saturday/Sunday hearings.

Aside: We've had these before. There's no transparency on why this would be a problem now.

Now in court: Defense lawyer James Connell resumes his questioning of FBI agent James Fitzgerald, who interview-interrogated Connell's client, Ammar al Baluchi, at Guantanamo in 2007, after Baluchi had spent more than three years incommunicado in a CIA black site.

There's some back and forth about Fitzgerald's interrogation (sounds like on 11/15/2002) of Saudi prisoner Mohammed al Qahtani after military intelligence had tortured MAQ at Camp X-Ray, months after the prison declared X-Ray out of business. nytimes.com/2009/01/14/us/…

The agent testified yesterday that he either didn't recall or hadn't read a Time magazine article that described what the military did to Qahtani at Camp X-Ray. So defense lawyer Connell brought the article to court to show it to him. time.com/3624326/inside…

Hmmm. Defense lawyer Connell says his goal is to finish with Fitzgerald today. So he seems to be jumping around a bit, and it is possible that the lawyer showed the agent this article mentioning his client: content.time.com/time/nation/ar… #mybad

Connell is reading a list of financial related documents that Fitzgerald brought to his 2007 interrogation of Baluchi. Bank accounts, money transfers, identification material, etc. Prosecutors consider this trial evidence.

And one-by-one, Fitzgerald confirms, the U.S. government has invoked a national security privilege over their origins.

As in, defense lawyers can't know about how the U.S. got them, can't challenge their authenticity, before the judge decides whether to admit them.

Fitzgerald agrees with Connell that those documents were the foundation of a financial presentation he and a case prosecutor, Jeffrey Groharing, made at this pretrial suppression hearing Monday.
It was a Powerpoint, and I can't find a copy on the war court website.

Now defense lawyer Connell is reviewing a stack of 2003-06 CIA cables that reported to the intelligence community what Baluchi told his interrogators in the black sites.

(CIA interrogations are inadmissible at trial as involuntary, coerced. Or, as his lawyers say, from torture.)

We don't see them, but FBI agent Fitzgerald has copies of the presumably classified CIA cables in front of them. They are accounts of what Baluchi told his interrogators before he got to Guantanamo on Sept. 4, 2006.

And item by item, the FBI agent agrees with defense lawyer Connell that the 2003-06 era cables contain identical answers to those Fitzgerald got by posing questions to Baluchi across four days of interrogation at Camp Echo in January 2007.

Baluchi lawyer James Connell: Are there in fact any topics that you interrogated Mr. al Baluchi about that the CIA hadn't already interrogated him?

Fitzgerald replies that he doesn't know.

The judge has called a mid-morning recess.
Meantime, the war court has released Tuesday's transcript: mc.mil/Portals/0/pdfs…

In court now: Defender Connell is reading a long list of questions that FBI agent Fitzgerald personally drafted for CIA interrogators to ask the 9/11 defendants in the black sites.
They include why were some of the hijackers conducting surveillance here and there.

Prosecutor Jeffrey Groharing objects. He declares the information "cumulative." He doesn't want the defense lawyer reading the questions aloud.

Defense lawyer Connell said there are an "enormous number" of questions and they illustrate "coextensive cooperation between the CIA and FBI."

Plus, Connell said, the defendants are entitled to a public trial. He calls them unclassified questions in a secret document.

Because the government has stamped the list of questions SECRET, apparently not FOR DISPLAY ONLY, Connell's client Baluchi can't even read them.

But Baluchi is sitting in court and can hear them, like us.

Judge Cohen asks if prosecutors are willing to list the questions in a cleared document that can be released to the public.

After back and forth over maybe some questions are FOUO, and prosecutors don't want to do it, Connell returns to Fitzgerald's long list of questions...

Fitzgerald has hundreds of questions, precise and open ended. Here's two he sent to the CIA to ask Ramzi bin al Shibh in a black site:
"What did the Hamburg pilots do in Pakistan and Afghanistan."
"When was Hani Hanjour selected to be a pilot?"

Connell asks the FBI agent what he expected to happen when he sent these questions into the CIA.
Fitzgerald: I expected those questions to be asked of the men in detention. I hoped to get an answer so I could put together some kind of threat information.

Defense lawyer James Connell: Did you have any idea how much these men would be tortured to get answers?
Prosecutor Jeffrey Groharing: Objection. Facts not in evidence.

Defense lawyer Connell rephrases: When you wanted the CIA to ask these questions of their secret incommunicado detainees did you think they were going to ask nicely?
Prosecutor Groharing: Objection. Calls for speculation
Judge Col. W. Shane Cohen: Overruled

FBI agent Fitzgerald: I wouldn't use the world nicely, no.
Connell: Did you think they'd use rapport building techniques?
Fitzgerald: I knew the questions would be put to them. I knew they were in the custody of the CIA and I knew it was different than a law enforcement approach.

Defense lawyer Connell: At this point in time you had been a law enforcement professional for 10 years. Why were you willing to participate in passing questions to the CIA to be put to these individuals?

FBI agent Fitzgerald: There were 3,000 dead people and there were a multitude of threats and unknown information. I considered the actions I took at that time to be reasonable.

Plus, Fitzgerald says, then fellow FBI agent Adam Drucker told him his questions "were not well received by the CIA."

Connell asks how the agent felt about that.

Fitzgerald: I was upset. I felt there might be significant threat information that would maybe stop another attack.

In court now, defense lawyer Connell is still questioning agent Fitzgerald. They are discussing FBI 302s by an FBI agent colleague of Fitzgerald's on the PENTTBOMB team that reference both FBI interrogations and Gitmo and incorporate reports from the black sites.

The judge is calling a lunch recess.
First, chief prosecutor BG Mark Martins has a few items:
--He checked with the prison and it could handle 8 a.m. to 6 p.m. hearings next week. Extended hours day after day present "significant operational constraints." Early notice is best.

--"No one should construe" what he said in a meeting after court yesterday with the judge and lawyers about maybe having a Saturday court session to suggest that either he or the judge have "the authority to commit funds" for overtime pay.

Instead he said, the judge "should not consider funding for civilian compensation that day as a barrier."

The court is back in session. KSM lawyer Gary Sowards is listing problems for a Saturday hearing.
--A team civilian lawyer has already exceeded this week's overtime.
--On open Saturday session, on war court travel day, would conflict with the commitment to a public trial.

--The victim family members and nongovernmental observers who watch the proceedings, then switch out weekly, depart on Saturday morning to be replaced on Saturday afternoon.
(Along those lines, I believe the Pentagon won't open its CCTV site of Gitmo proceedings on Saturdays.)

Judge Cohen asks someone, sounds like the prosecution, to sort out the authorities on things like overtime, and get back to him. He knows he doesn't have any but would like to know how it works.

The judge said he also foresaw a time crunch, not enough court time, for these suppression hearings, when he set the provisional 1/22/2021 trial date.

An example: The judge said he could imagine next year's questioning of former CIA black site contractors Mitchell and Jessen, consuming two weeks.
Baluchi defender Connell replies that Mitchell alone might require two weeks.

Here in court, defender Connell has been asking agent Fitzgerald about his January 2007 interrogation of Baluchi. He doesn’t remember much about what happened before then, although he knows it began on Jan. 17, 2007.

He thinks he got the assignment after President Bush announced the HVDs were at Gitmo four months earlier.
His supervisor called him, asked him to join the prosecution task force.

He can’t remember if he came to Guantanamo a week or just days before the interrogation.

Fitzgerald said he didn't know the history of Camp Echo II -- where the clean team interrogated all the former black site captives in '07. But he recalls there was a line in the admonishments to be read by some agents to prisoners who had been there earlier.

Aside: When it was a black site, a now declassified fact that folks can say in court.

War court defendants Ramzi bin al Shibh and Mustafa al Hawsawi in the 9/11 case and Abd al Rahim al Nashiri in the USSCole case were among those held here.

Background: miamiherald.com/news/nation-wo…

Echo II is now the only Guantanamo prison-approved site for high value detainees to meet their lawyers, including those three men, who are capital defendants.

Nashiri's lawyers have been complaining about the site for years, even before we knew why.

On the timing question, Fitzgerald tells Connell: "At some point I agreed to come down and we were going to re-interview the high-value detainees."

Before heading to Gitmo, Agent Fitzgerald says he gathered documentary evidence to take to his 2007 interrogation of Baluchi.

Now Connell is showing Fitzgerald the prosecution photos of an Echo II hut resembling where the clean team interviews were done. It doesn't show the cell portion behind metal mesh. Or, as Fitzgerald called it, the cage.

Of the prior occupancy by Hawsawi and the others, Fitzgerald says, maybe he thought they were in CIA custody. But maybe he thought the HVDs had been held at Guantanamo by the military.

Connell asks Fitzgerald why he didn't follow up when Hawsawi, who he also clean team interrogated, mentioned that he recognized Camp Echo II from his earlier stay.

Fitzgerald: "I wanted to focus on whether or not he was willing to answer any questions that we had at that time."

Connell asks who was at Echo II when agent Fitzgerald questioned Baluchi.
Fitzgerald lists... then Marine Maj. Jeffrey Groharing, now a civilian 9/11 trial prosecutor; one of the lead prosecutors, retired Col. Bob Swann; and Navy Masters at Arms to transport detainees.

Connell asks about the Camp 7 OIC and then SJA Commander Pat McCarthy.
Fitzgerald is not sure, doesn't think he knows the Camp 7 OIC or his codename but remembers meeting the SJA but maybe not at Echo II.
There were also linguists.

Connell is asking Fitzgerald about his early career training at Quantico, including on Miranda warnings.

Prosecutors object on relevancy grounds.

Judge Cohen overrules it, declares it relevant.

Seems a prosecutor is unhappy. We hear Judge Cohen say, "Don't make faces counsel."

There's a recitation about this evidence can be used against you and then Connell asks the agent if he was specifically instructed in writing not to offer a Miranda warning.

Fitzgerald doesn't remember but, "clearly I was going to do something different."

Connell has a memorandum dated Jan. 7, 2007. It instructed Fitzgerald and the others how to do their Gitmo HVD interrogations. It says FBI are to follow the same rules governing U.S. interrogations, "other than advisement of Miranda."

Fitzgerald: At the time they did not have the right to an attorney so I interpreted that to mean I should not advise them because they did not have that right.
Connell: Was that your decision?

Fitzgerald attributes it to "FBI management," says he understood that, until they were charged at a military commission, they could not get a lawyer.
So that's how he knew they couldn't get Miranda.

Connell asks if, in his law enforcement career, the Massachusetts State Trooper-turned-FBI agent ever once refused to give someone Miranda warnings because they had not been charged with a crime.
Fitzgerald: No.

FBI agent Fitzgerald, on questioning, says he knew there were military commission defense attorneys -- Hamdan, for example, had Lt. Cmdr. Charlie Swift -- but the agent understood that Connell's client, Baluchi, was not entitled to one.

Connell: Did you tell him he had a right to remain silent.
Fitzgerald: I did not say the words, 'You have a right to remain silent.'

Connell begins to ask the agent about an agreement in which FBI agents were detailed to the CIA. Fitzgerald says they were more like liaison. Connell is surprised, goes to get a document and then says he'll need to ask the agent about that in a closed, classified session.

Fitzgerald says when he interrogated Baluchi he was "under the impression" that the prisoner "had not been questioned by FBI agents in the past."
Connell: Who told you that?
Fitzgerald: Nobody told me that. I had no basis to think.

But Fitzgerald said now he knows differently.
Fitzgerald: "I know he was interviewed by an FBI agent as part of another, um, I'll call it task force or organization."
Connell: Task force?
Fitzgerald says, well.. "part of a CIA team" prompting the censorship switch.

The public can no longer hear the testimony, or see the court video feed. We are waiting for an explanation of why the court security officer, for the first time this week, used the kill switch on the 40-second delayed audio to the public.

Now we see and hear defense lawyer Connell.
He advises the judge that he understands that the last comment will be stricken from the public record. But he wants it preserved in classified fashion.

Connell asks Fitzgerald if, when he advised Baluchi that the FBI and CIA were different organizations, did he tell him that there were FBI agents detailed to the CIA?
No, he says.

Connel is done.
Judge Cohen has some questions:
--How did Baluchi come to write on those documents?
Fitzgerald said he instructed Baluchi that, if recognized them as belonging to him, he should sign and date them.

Cohen: Were you personally aware of what Baluchi previously said about those documents when you interrogated him?
Fitzgerald: I may have seen a cable. I don't have a specific recollection. I may have seen a cable that may have articulated something like that.

Cohen: What was the purpose of getting these Letterhead Memorandums?
Fitzgerald: To get a usable statement for a military commission proceeding if someone was willing to speak with us.

Judge Cohen asks Fitzgerald his understanding of attenuation...
The agent says, I would want a gap in time, a change in circumstances, different people asking questions.

Cohen asks if he said anything about previous things he said would not be used against him.
Fitzgerald: No.

Cohen says it was likely that you did get information from the CIA in furtherance of your investigation...
Fitzgerald: The overall impetus was to generate intelligence to stop an attack.

In response to a question from the judge, Fitzgerald says of his Gitmo interrogation of Baluchi: I tried to keep the interrogation focused on documents or a photograph, essentially a neutral item and ask questions about that.

Judge Cohen asks the agent if before his 2007 interrogations he was aware of either Mr. Hawsawi's or Mr. Baluchi's "conditions of confinement."

He replies that he "knew about some of the EITs," short for enhanced interrogations the CIA used on its prisoners.

Fitzgerald said he "didn't know specifics of confinement. I certainly heard rumors over the years about where people may have been. I didn't know their day to day life, for instance what a black site was like."

The judge asks about Baluchi's demeanor during the interrogations.
Fitzgerald describes him as engaged, interested in the documents he was showing him, maintained eye contact. The agent said he detected no aloofness or incoherence.

Cohen asks Fitzgerald if he believed he was obtaining a voluntary statement.

Fitzgerald: I did. He said, based in part on Baluchi's "demeanor," and part on "the evidence presented." He said he took his demeanor and reactions to be assessing, OK they have this, they have this.

Fitzgerald said when Baluchi didn't know something about "items," Baluchi said it. "I believe he said things voluntarily. He felt no compulsion to answer." He said the agents asked him "many times" if he was willing to talk, willing to come back to interrogations.
He was, did.

With that, the court is cleared for a classified session. Fitzgerald will be questioned about secret stuff with just the judge, defense lawyers and prosecutors present.

Like, what was this about...?

Today's closed hearing in the 9/11 case has ended.
We've received word that the judge intends to resume in closed session 8:00-11:30 a.m. tomorrow and then open it up after lunch 12:45-6:00 p.m.