Thread by @GitmoWatch

Today was the 2nd day of the 57th 9/11 pretrial hearings at Guantanamo Bay.

None of the four defendants attended this morning. Mr. Mohammad joined in the PM.

Prosecutor Trivett offered arguments on the motion to suppress statements made by Khalid Shaikh Mohammad to the FBI in Jan 2007 after 3.5 years of incommunicado detention and torture in CIA black site custody.

The statements were originally suppressed by Judge Pohl as a sanction in 2018 after the government forbid defense from investigating the former CIA torture program. He retired shortly after.

The government moved to reconsider. Judge Parrella who replaced Pohl brought the statements back but ordered defense to file motions to suppress. This suppression issue has been a primary issue of the war court since 2018.

Ammar al Baluchi's statements were suppressed last year by Judge McCall, the fourth judge to sit on the 9/11 bench. Ruling linked: lawfaremedia.org/article/new-fa…

The government appealed the ruling in the Court of Military Commissions Review. Arguments were made earlier this year and decision is pending.

Trivett began his argument: "Mohammad couldn't shut up about his role" in the attacks.

Trivett reviewed the timeline...Mohammad was captured in March 2003 and for his first 23 days underwent EITs (enhanced interrogation techniques) described in detail by Dr. James Mitchell. By March 27th 2003, he was out of EITs.

Mohammad was transferred to Guantanamo in September 2006. He had first visit from ICRC the next month.

The "clean team" aka LHM (letterhead memorandum) aka FBI interviews happened in January 2007.

Trivett plays a 6+ minute recording of Mohammad discussing his case with fellow detainee, Guleed, to Gary Sowards' objection.

"The CIA time is over, now the choice is in your hands." Trivett quotes Mohammad from the jail recordings.

Mohammad also references the 'secret' evidence cannot be relied upon -- Trivett says this comment supports that Mohammad understood the CIA interrogations couldn't be used to prosecute him.

Trivett continued to cover the damning statements Mohammad has made including an April 2002 interview with Yousri Fouda theguardian.com/world/2003/mar…

Trivett argued Mohammad told Dr. James Mitchell in 2003 he was the emir of 9/11. Mitchell said he wasn't interested in that, he wanted to know about future plans.

Sowards informed the court the gallery wasn't shown subtitles for the audio played this morning.

Judge Schrama inquired if the exhibit was submitted for review five days before the session?

Trivett: Our litigation pace doesn't allow us to submit for review five days before the session. I was working on this until the last minute.

Court rules require all exhibits be reviewed by a security officer, submitted five days prior to a session begins.

Judge Schrama: Rules exist for a reason, the public is suffering not being able to see this.
He allowed the slides to be shown this time but reminded the court he made it clear for six months his intention to take these arguments so there has been plenty of time to prepare.

After some brief technical delays, Trivett played a seven-minute recording from February 2007, which Mr. Mohammad discusses his review tribunal with Guleed.

Following the seven-minute media presentation, Sowards objected to continuing stating the media includes extremely prejudicial information that the government had previously stated to Judge Pohl would not be used. Requested an ex parte with Judge Schrama.

Sowards said motions were withdrawn based on the agreement such media wouldn't be used against his client. Sowards and Trivett in side-bar to disuss off the record.

After lunch recess Trivett played recordings of Khalid Shaikh Mohammad speaking in English with Judge DeLury at his 2007 Combatant Status Review Tribunal, 53 days after the "clean team" interviews.

The recordings continue with a representative reading a statement written by Mohammad claiming responsibility for his role the attacks.

Trivett admitted the first three months of Mohammad's detention were the hardest and, he says, for good reason. He "pulled off the worst terrorist attack in US history..."

Trivett quoted Dr. Mitchell's reasoning for the torture of Khalid Shaikh Mohammad -- "We wanted to stop that nuclear attack that they though was going to happen. They wanted to stop it. And they were going to do everything that was legal."

"They were going to walk their toes right up to the line of what was legal and do what it took, because they were not going to let them set off a nuclear bomb in the middle of LA or NY or some place like that. They weren't going to do it."

Dr. Mitchell testified over multiple weeks in January 2020 and February 2024, beginning with Judge Cohen and ending with Judge McCall. Judge Schrama will decide whether Mitchell's testimony was compelling enough to permit Mohammad's 2007 statements.

Trivett argued there was sufficient attenuation of 120 days after Mohammad arrived in Guantanamo from CIA black site detention in September 2006 before the LHM interviews.

The first Camp VII commander testified late '19 as a suppression witness. Trivett reminded the court the commander posted Geneva Convention rights and testified the guards wore military uniforms. There have been questions as to who actually had control over the facility.

Sowards had an additional objection to a portion of the materials Trivett briefed, same topic as his morning objection. The judge doesn't think it will be an issue as the materiels won't be released to the public and Trivett has said he won't speak to the topic at hand.

Trivett called the 2006 ICRC visits a game changer. The detainees had been told no one even knew where they were (when they were in CIA custody).

Trivett said the determination for voluntariness includes the lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.

Trivett argued 1,264+ days passed between the end of enhanced interrogation techniques and "clean team" interviews.

FBI Special Agent Frank Pellegrino and Intelligence Analyst Brian Antol introduced themselves in true name and showed credentials at the beginning of the interview.

Trivett argued the rights advisement given to Mohammad in 2007 was actually broader than Miranda.

Though the advisement determines whether the detainee is willing to answer questions, it does not advise the detainee has a right to remain silent or guarantees access to an attorney.

Trivett argued the government simply reached back to the pre-Miranda days from the 1800's to 1966, where voluntariness was the only factor considered for statements to be used. 🧐

The war court heard another recording of Mohammad talking to his detainee companion Guleed just after his meeting with SA Pellegrino and IA Antol.

The recorded conversation lasted about 20 minutes and they covered a range of topics from the interview to Mohammad's former palm pilot and how he wrote on it.

Trivett argued this conversation demonstrates the voluntariness of Mohammad's statements to Pellegrino and Antol.

Antol testified in 2023 that Mohammad was advised of his rights every day.

Pellegrino testified the idea was to let Mohammad know he didn't have to speak to us, get him comfortable with the information we provided him. And then he did ask me if he had the right to an attorney, we did advise him at that point that he didn't bc he was not yet charged...

Trivett continued with characteristics of Mohammad. He was educated at the University of North Carolina A&M. He was known as Mukhtar which translates to "The Brain." He was 42 years old in 2003.

Trivett continued to read transcripts from Pellegrino's and Antol's testimony, he says the interview was 'primarily a conversation.'

Judge McCall called an end to the day around 1730. Trivett's arguments on Mohammad's suppression will continue tomorrow at 0900.

@threadreaderapp unroll, pls