Lawfare Daily: The 9/11 Case in Guantanamo

[Intro]

John Ryan: The prosecution thought that this was a no-brainer. There's no way you're getting access to actual witnesses. And the defense teams thought that, you know, unfettered access, and defense teams thought that they should be able to conduct the investigations as they saw fit while complying with their obligations, which they had to, to join the the case to protect classified information.

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare with John Ryan, author of a new book about the 9/11 case and the Guantanamo Military Commissions.

John Ryan: When they connected those interviews, they typed up their notes in memoranda on a CIA laptop, and if the detainees during these sessions talked about their abuse by the CIA, that had to be documented in a separate document that would be removed from the official statement that presented for the court case.

Natalie Orpett: Today we're talking about John's book, which provides a detailed first-person account of the past decade of litigation in the prosecutions of the five men the United States has accused of perpetrating the September 11th, 2001 terrorist attacks.

[Main Podcast]

You are here because you started covering the 9/11 case at Guantanamo in 2015, and you have now taken, I believe, 55, maybe more, trips to Guantanamo. So first thing, I just wanna thank you for your commitment to this case and to this matter. I know it can be really demoralizing to dedicate so much of your time and energy to something and feel like oftentimes no one cares about it or even remembers that Guantanamo still exists. And for reasons we'll discuss, it is a really tough beat for reporters.

I do wanna focus the main part of our conversation today, particularly given Lawfare’s issue space and audience, on the main question, I think, on most people's minds, which is why, 24 years after the events of 9/11, have the alleged perpetrators still not been tried?

Before we get there though, I do wanna ask you about the title of your new book that, that is out, which is “America's Trial: Torture and the 9/11 Case on Guantanamo Bay.” Why did you call it that?

John Ryan: Well, yeah, that's a great question. And first of all, thanks for having me. The editor at, who acquired the book had the same question because when I was trying to pitch the book, a lot of people said, well wait for the trial. You know, sounds interesting, but wait for the trial. And I said, no, the real story is that there may never be a trial and there at least there hasn't been one for such a long time.

And then I explained to him that I sort of see this as America sort of fighting with itself. And so the trial is between two sides of America. I go into that at different points in the book. Whereas clearly because of the CIA program, there's ample evidence that the United States is willing to sort of step away from the law, operate outside of the law. But then it has this trial, this legal proceeding that is going on for so long that they're sort of willing to draw it out for as long as it takes, as opposed to having them go through the CIA program and then maybe getting rid of them somehow, or just keeping them locked up forever.

They’re willing to sort of step away from the law, but then there's this sort of big commitment, however effective, it's debatable, but real commitment to due process in a sense. And so that's how I see that one of the core tensions of the book.

Natalie Orpett: So I found this so interesting as a lawyer who had been sort of on the other side of the glass in the courtroom as you describe it.

So I do wanna give a disclosure for our audience. I represented a different detainee in the military commissions, Majid Khan, for about eight years. I have no personal knowledge of the 9/11 proceedings beyond what anyone can learn from public sources. But what you wrote about the experience of traveling to Guantanamo, staying on the base, of all of the logistical complications and, to put it nicely, the absurdity of various things that all really resonated with me.

So we'll get to the case in a second, but I wanna hear a couple examples from you about really what the challenging aspects of reporting are. Maybe throw in also a couple of your favorite examples of the absurdity I referenced. My favorite one is that there's a gift shop where you can buy stuffed iguanas and banana rats that have Guantanamo Bay emblazoned on them. But give us your take.

John Ryan: There’s really no end to, to those types of details that, you know, the book has a bunch of the absurdities, but I've probably left out 80% of them that you encounter along the way.

Yeah, it is a real challenge reporting from there, just as it is from what I've learned, you know, practicing law there is difficult as well, for the same reasons. It's remote. The facilities are not quite the same as you would have stateside and as a reporter a lot of the documents in the case are not public.

They may be someday, but if you were to go to the military commission's website, which in some ways is a good site, it has all the transcripts, for example, which is helpful. Certainly was helpful when I was writing my book. But when you're preparing for a specific hearing, most of the documents related to the motions that will be argued are not yet public because they're still going through a security review. So that's a problem.

The other problem is that the prosecution, the office of the chief prosecutor, has declined to meet with the media since about the fall of 2017. So if you combine that with the fact that the documents are not available, there's a challenge to sort of understanding the government's point of view, at least before getting to court.

Because of the classified nature of the CIA program, which has been such a big part of the 9/11 case and other subject areas as well because they're classified, the case shifts between closed session and open session pretty regularly, and as the, as the CIA program be became more and more a focus of the case, there became more closed sessions.

And even as I write in the book, particularly a little bit later in the book, during the, the real heart of the suppression hearing, even open sessions involve information that is really opaque from the viewing gallery because the defense teams and, and the prosecution to an extent are carving out areas that can be legally released to the public, but it's not of a fulsome airing of the material.

So you don't always know what they're asking about, and the questions can often be just asking yes or no. And they're often referring to documents that the public can't see. So that really gets into why even if you go to the, the base to cover the case, which I recommend, as opposed to going to the viewing site in Fort Meade, there's one viewing site, closed circuit for, for the media. And for me, I, I think going to Gitmo is the way to go when, when covering the case. But there are limitations for the, for the reasons I just said.

And then before I forget, I think the, one of the, the absurdities, you mentioned the gift shop, I think it was after the pandemic when the gift shop started selling Disney themed t-shirts, which seemed to take things to a little bit of a new level, so you get like a Gitmo Dad.

So for people outside the base, were really fascinated by those types of details. I think that Disney. The Disney era was a, a favorite.

Natalie Orpett: It is a bizarre place. Yeah actually, on the topic of the closed sessions and the documents, you had a, a term that I think you coined that I thought was really excellent, which was the quadrifurcation of the proceedings. So tell us what are the four different layers that you were talking about there?

John Ryan: Yeah, so bifurcation, of course, is what they refer to if something's gonna be closed and open. So you've got two. And then trifurcation can be, I guess, a hearing where there'd be open, closed, and then maybe a closed session in which the defendant is able to attend, depending on the subject matter, although that's never happened in my, my attendance of the case.

And then quadrifurcation would be what I was talking about earlier, where you would have an open session in which the information that was discussed in open session the attendee like me, would have no idea what they're talking about really. Even a trained observer like myself would have really no idea because it would be yes or no questions, and they would be referring to documents that would not be displayed on the gallery.

And quite often what would happen in the suppression hearing when there was witness testimonies, one of the defense lawyers would go over to the prosecution and they would talk for 30 seconds to figure out what could be asked. Then they'd go back to the podium and ask the question, and it would be yes or no, and then they'd move on. And so it was absolutely a public session, but those parts seemed to be in this different zone of public, but not really understandable.

And then I said there may have been pentafurcation when there were a series of questions developed by the defense team that the judge was not going to be able to read. So that when that was being argued in court and if the judge didn't have access to the questions, was that now a fifth type of discussion? I think as great as a suppression hearing was for reporters and anyone interested in the case, there was a lot of that where it was very painful to get through because of this sort of shifting between modes of the case that are available to the public and not available.

Natalie Orpett: Yeah, and I, I want to take a minute, given all of that, I think it's a, a good explanation of why this book just must have been a tremendous amount of work, because as I think that makes clear, you know, the, the challenge of just merely understanding before you can start piecing things together and having to attend a hearing where you haven't been able to see the filings beforehand and they're referring to things by AE numbers, which is the numeric and I guess alphabetical system that the military commissions use. And there are all sorts of acronyms.

I mean, that would make it hard enough, but going into court, trying to piece together what they're saying later, maybe being able to see a transcript, although it might be redacted, another absurdity, sometimes redacted stuff even from open session that you sat through and might have notes on, that it just must have been a tremendous amount of work to piece all of this together to be able to tell the story as coherently as you did. So props for that.

John Ryan: Thank you.

Natalie Orpett: All right, so, let's shift to the case. So, as I said, I think an overarching theme I wanna talk about is why it's been taking so long.

But before that, a, a quick bit of background for folks who are not familiar with the case. These defendants were transferred from black sites to Guantanamo in September of 2006. They were first indicted in the military commissions that's called, charges were referred in 2008. Those charges were dropped in 2010 so that they could be tried in federal court in the Southern District of New York. Then they were recharged in the commissions in 2012 after Congress passed legislation that made federal prosecution impossible.

So 2012 is the start of the present case that we're in. There were originally five defendants. There are now four because one of them was severed in 2023 due to being found incompetent to stand trial due to mental health problems. And that's where we are as of now. I checked this morning, September 8^th, when we're recording, there are 14,053 filings on the docket. You have been following this case since 2015 and have been at every hearing.

So when you started in 2015, they were in the thick of litigation over this major controversy that had come to light on the team of one of the defendants, Ramzi bin al-Shibh. Tell us about that.

John Ryan: Yeah, in fact, I had attempted to travel to 9/11 case hearings prior to my first trip in October of 2015. But the, the judge at the time, Army Colonel James Pohl, had been canceling the hearings because this issue was still pending, which is that the FBI had turned a team member, at at least one team member, of the bin al-Shibh team into some type of informant to have some confidential relationship with the FBI.

And so the issue was whether that team would be, or the, the lead lawyer for that team and other members of the team would be conflicted out or conflicted from the case if they were also under criminal investigation. And it took a while to resolve. The judge really wanted to wait until he was convinced that there was a pending investigation.

Eventually, when I first got to the case in October 2015, they heard oral arguments on whether the information received by the defense teams was sufficient, that had they learned now that this matter was really over, they weren't convinced that it was. And the lead lawyer, the longtime lead lawyer for Ramzi bin al-Shibh, James Harrington, was still nervous about it in the sense that the letter he had from the U.S. attorney, I think said something like, there is no pending investigation at this time. And so this, you know, at this time is sort of, it kind of maybe hangs out there a little bit more than people want, but the judge was convinced that this issue was resolved.

And so at least enough, and the defense teams received discovery on the investigation and sort of the infiltration and got from what we learned in open court. They’re, the, the bin al-Shibh team received information about the extent of the, in the infiltration and the extent of the information that was turned over from the team to the government, which was quite alarming. And I think not all that is entirely known to the public.

But yeah, once that was resolved, the sort of the 9/11 case moved forward and then it really started moving forward at that point, not immediately, but then as I explained in the book, kind of started transitioning into litigation in earnest over the, the CIA program and, and what type of evidence of witnesses would be available.

Natalie Orpett: Okay. And just to clarify that investigation and the FBI informant on the team, the investigation was they believed of the attorneys, correct? Not the, there was nothing further with respect to the defendant himself?

John Ryan: That's correct. Yeah. No, I, yeah, I think it was just about how the team was handling case information.

Natalie Orpett: Okay.

John Ryan: Classified and otherwise. Not entirely classified information. Reuters did a story shortly before that hearing in October of 2015, explaining that there was some concern over a message relayed from Ramzi bin al-Shibh to a team member, and then from a team member to one of bin al-Shibh’s relatives and was it, was there some concern over whether that message should have been relayed, but that was just part, as the lawyers on the, on the team made clear?

That was just one, that was just part of it. It was really, I don't, I didn't include it in the book, which is really I wrote about a 25-page chapter on this entire thing, and the editor and I decided that we should get rid of it because it was before I got on the case. And the, and the book really does kind of a chronology of sort of my arriving on the case. And so we explain it as, as we have now, but I really had hashed it out a lot more in a chapter, but we felt like we had to get rid of it, which was frustrating, but probably better for the book.

Natalie Orpett: Yeah, that sounds familiar as well, lots of tertiary issues that sort of detract from being able to understand the core of things, but do feel really important. And to close the loop on that one, I believe there were not any charges against any of the attorneys based on that investigation. Is that right?

John Ryan: That's correct. No charges.

Natalie Orpett: Okay. The other thing that happened around there around that time is that an interpreter who was in the courtroom presented a problem. Tell us about that one.

John Ryan: Yeah, and that was, I think maybe the last actual hearing before I got to the case in, I think that was in February of 2015. And yeah, that was also one of the, the major infiltrations that the defense teams sensed in that the interpreter for Ramzi Bin bin al-Shibh, who was at his table, was an interpreter who had worked at a CIA black site.

And so the defendants recognized him in court and made their recognition of him known. It became another topic of litigation, which I think lasted another seven years, you know, figuring out how that happened. Clearly the defense seems, saw some type of intent where it was a message of in intimidation that, you know, the defendants would ever be free of the CIA and that they can put an interpreter on their team.

And I think the government cri-, criticizes the defense for not doing their due diligence on who were these team members that were being assigned. And so, eventually they were able to depose him, but that deposition was not public. And so there's still a bunch of that we don't know and probably never will, but that the litigation over trying to figure out what happened, lasted, at least through the, as I recall, through 2021 or something like that. And I think it, it, the deposition only happened within the last few years.

Natalie Orpett: So let's move to 2018 which is when you learned about some guidance that the prosecution had given to the defense, that had happened the previous year, but it took a little while to come out in open court and it related to what the defense was and wasn't allowed to do in building its case.

And it's worth pausing just to say that because these are capital cases, the sort of threshold for building a case in the defense and for doing investigation to that end is even a bit higher than one might expect for a regular criminal defense case. So what was all of that about?

John Ryan: Yeah, so at this point it was clear that the defense teams would get some information about, and they were already receiving discovery on the CIA program, and it would be relevant to the suppression. The suppression motion had not been filed, but it was clear that the defense teams are going to challenge the admissibility of confessions that their clients gave on Guantanamo Bay after they arrived from the black site.

So the judge had already decided that past statements, past treatment would be relevant to any subsequent statement. And so, even though they clearly were not being tortured at the time, they confessed to the FBI in Guantanamo, how they were treated before was relevant. So that was already sort of decided by this point. And then they would use that information about how their clients were treated at the CIA in order for mitigation, if there was ever, you know, a trial in the sentencing. And, and then it would also be relevant for motions to dismiss a case for outrageous government conduct.

But anyways, you know, part of that is not just getting, as the defense team has explained in court and not just getting discovery, which would be in the, in this case, summaries of cables about kind of summarizing how their clients had been abused at the black sites in, in the conditions. And some of the different techniques that were used, but also the defense, defense teams would want to talk to CIA witnesses who saw what happened.

In September of 2017, they had gotten the guidance from the government that said that they couldn't do that. Like basically if they, people they suspected who work presently or formerly for the CIA, who would have some knowledge of the black site program, that there were off limits and the defense teams would have to go through the government and request interviews with witnesses who would be identified by a code name.

And so that really was a huge turning point in the case because the defense teams really felt that that was an unconstitutional hindrance on their ability to investigate in a death penalty case. The competing viewpoints between the defense teams and the prosecution were completely at odds, completely impossible to reconcile.

You know, the prosecution thought that this was a no-brainer. There's no way you're getting access to actual witnesses. And the defense teams thought that, you know, unfettered access, and defense teams thought that they should be able to conduct the investigations as they saw fit while complying with their obligations, which they had to, to join the, the case to protect classified information.

So they, you know, they had a way of, of doing that in a way that they felt would protect the identities of, of the CIA personnel. So that became a huge focal point of the litigation in 2018.

Natalie Orpett: And just to, to dig into that for a second. So the, the argument from the defense was, listen, we need to build our defense. We need to prepare a case in expectation of making arguments in mitigation at sentencing. And so we need to understand as best we can, what happened to our clients in furtherance of those things, in furtherance of our various motions. We should note that defense attorneys do have the highest classification, but say a little bit more about the government's argument here.

What was their concern and what was making them decide that defense attorneys should not have access to certain potential witnesses?

John Ryan: From the government's point of view, in a case with a lot of classified information, the law demands that the prosecution balances national security with due process. And so the identities of covert agents is some of the most protected information that the gov, that the government has.

And so they felt that they had a system for doing that, that was the appropriate system for the case, which is you can talk to people through us in a way that protects their identities and not sort of go at it yourself. The fear that they would reveal the identities of these people in, in the process. So from the, from the prosecution's point of view, they weren't saying, you can't ever talk to these people, but you need to do it in a way that has our imprint on it so that we can be convinced that the identities are gonna remain protected.

And what the defense would say is that was essentially practically speaking, a complete prohibition on them contacting CIA personnel because of, that's just not how investigations are done. You don't rely on a third party to sort of arrange things. And so in the end, as you know, Judge Pohl really agreed with the defense and that he basically found that it practically had turned into a total prohibition because only a, a handful of CIA personnel had ever agreed to talk to the defense teams through the system.

And so he felt that it prevented the defense teams from effectively bringing a, any type of suppression motion and suppression case. And so he sort of preemptively suppressed the FBI, the confessions to the FBI on the grounds that it's not gonna be a fair hearing. So that was his punishment for the government.

He did not rule that the limitations on contact and CIA witnesses had an effect on mitigation. He felt that the defense teams were still adequately positioned to present mitigation cases if the case ever got that far. But as it came to suppression, the admissibility of kind of the biggest evidence in the case, which would be the confessions to the FBI, he felt that it was not a fair fight. And so he suppressed those statements before even the suppression motions were filed.

Natalie Orpett: Right. So let's turn to the suppression motions, which you've mentioned a couple of times. It really is, I think, one of the absolute core legal issues in the case. But there are so many others. So, as you said this, all of this is happening sort of in anticipation of suppression motions.

It's, it's clear that this is gonna come up. Tell us a bit more about the background here. What are these statements, why are they of such intense focus? Why does the government care so much about making sure that they're admissible? And what was the defense saying about why it was inappropriate to admit them?

John Ryan: When the defendants were brought to Guantanamo Bay, it was September of 2006, and then at some point in that period of time in the fall, this, I guess it's referred to as a clean team system, was sort of developed and put together. And so FBI agents and other federal agents, but with FBI really as the lead, would be re-interrogating the defendants on Guantanamo Bay in early 2007.

And so from the government's point of view, they were by definition voluntary because the leadership at Guantanamo Bay, the detention camp told the defendants, or at that point, the detainees that they were going to these meetings, but they could not go if they, if they didn't want to. And when they finally met with the FBI, they were told that they didn't have to participate.  And yet they did over a series of days, mostly in January 2007.

And so there were multi-day interview sessions, kind of traditional FBI rapport-building where they went through the allegations and some other parts of the defendant's history. And they gave statements that the FBI turned into a memoranda that would be kind of official evidence in the case. And so they were not given Miranda warnings, they were not giving access to lawyers, but they were told it was voluntary. And so in, in the government's view of this situation, it was a voluntary interview and therefore admissible.

The defense teams claimed, you know, immediately that, and then the argument sort of got a little bit different over time, but the, the idea being that their clients were conditioned into saying whatever the government wanted them to say because they had been so badly tortured, held in, held in isolation, and interrogated and debriefed, you know, thousands, hundreds of times at the black sites. And then they're brought to Guantanamo and four months is not enough time to kind of wipe the slate clean and get a voluntary confession or statement.

And that's really the, the crux of it. And so they had other arguments that the FBI sort of was more involved in the CIA program and said there's a, there may have been a level of taint associated with the fact that the FBI was sort of a little bit part of the CIA program and then ran these interrogations. But first and foremost at the beginning, it was the fact that the defendants were conditioned, tortured into saying whatever the government wanted and therefore the statements could never be free of torture and, or reliable.

Natalie Orpett: Right. And just for to take it up a level for some legal parameters for those folks in our audience who like to dig into the intricacies of the law. So these statements were in 2007, this was shortly after Congress had passed the Military Commissions Act that started to build the legal infrastructure around how detainees would be tried in non civilian, non-federal courts. And there is case law in federal courts relating to this question of whether confessions can be voluntary, which is of course the only way that they can be admitted as evidence against a defendant if there has been a situation of improper treatment to put a very diplomatic term on it.

There is in fact plenty of case law in, in criminal case law in the domestic context. As with everything at Guantanamo now and before, it's unclear to what extent that precedent applies in Guantanamo. It’s, it is certainly not legally speaking precedential, but it is always a, a question of how much those sorts of frameworks should apply.

And at the time, the law about what this should look like in terms of confessions within the military commission system was still very much under construction. So this is an, a legal issue that is sort of built on shifting sands as it is with respect to what's legally required in a way that would not be the case had these circumstances been playing out in federal court.

So with that said, let's keep talking about the suppression motion. So in 2018, as you said, there was this major ruling from Judge Pohl who was the first judge on the case, so had been there since 2012. And he decided even before the suppression motions had been filed, that because the defense was so constrained in what it was allowed to do to start building a case, including building toward making an effective argument that these statements should be suppressed, that he was just going to suppress them, sort of anticipatorily.

But less than a year later, Judge Pohl had retired and his successor judge actually overturned that ruling. So tell us what happened there.

John Ryan: Yeah, Judge Pohl retired shortly after making that ruling. Then he had a, his successor was only gonna be on the case for about 10 months, and that was a Marine Colonel Keith Parrella.

And the government motion to reconsider it didn't go to Pohl because he had left the case until it went to Judge Parella. And I think the defense teams were hoping, listen, Judge Pohl sat over this litigation for a long period of time and made a very reasoned decision. And a new judge kind of coming in just for a little period of time shouldn't reverse that.

And maybe it would, you know, just go to the courts appellate court. But Judge Parrella heard arguments on the motion to reconsider, and he sided with the government that it was a, a manifest injustice to take away some of the government's most critical evidence without a suppression hearing. And so he ordered the defense teams to file their suppression motion.

His ruling was interesting because he didn't say, I disagree with Judge Pohl, that the defense has plenty of evidence to file their suppression motions. He sort of said, well, it's possible that they're not fairly positioned to present their cases, but we won't know until we kind of get into it and have a suppression hearing. And so he ordered them to, to move forward with it.

The defense teams were really critical of this. They said that they're being forced into a test run of a suppression motion in which a judge would have no way of knowing if the defense teams failed in their motion or if they failed because they didn't have the right witnesses that they never had access to. And so how would a judge sort through that, particularly a judge who hadn't been on the case for a long period of time.

So that's what happened. That led to the suppression hearing that finally unfolded after Parrella left the case. When Parrella left the case the third judge in Air Force, Colonel Shane Cohen, he heard arguments one more time on this issue, you know, should we have a suppression hearing or should we just go back to what Judge Pohl decided? And he decided to move forward with a suppression hearing. So he, he wanted to move forward. And so in September, 2019, the suppression hearing finally began.

Natalie Orpett: Right. So I think in normal litigation you would sort of think to yourself, okay, so the motions were filed, the hearing happened, and now we wait for the ruling. But instead, what happened is this led to a whole lot of discovery. And I'll, spoiler alert, say that there has been only one ruling with respect to the question of suppressing these statements. And it happened earlier this year and only for one of the defendants. So there were a lot of years in between there.

But as it turns out, a lot happened and a lot of information came out even though these motions had already been filed, which is a bit unusual in the context of normal litigation. So tell us a little bit about how things proceeded after that hearing actually happened, and, and why, why was there more information still coming out?

John Ryan: Discovery is probably still coming out related to suppression. You know, it just, it really, even when witnesses have taken the stand that day or later that day or sometimes afterwards, there could be discovery relevant to the witness and there, there may be a need to then recall the witness.

But what allowed the suppression hearing to at least start is that the defense teams wanted access to, let's say about a hundred CIA witnesses, most of them covert. The government did not make any of them available other than doctors James Mitchell and Bruce Jessen, the contract CIA psychologists who helped kind of design the interrogation program. So there were contractors, but if you want to call them CIA witnesses that, you know, the defense teams got two CIA witnesses out of a hundred.

Judge Cohen, and then successors did not rule that the defense teams could not have access to a witnesses, but that issue was tabled until they got through the agreed upon set of witnesses, which between government and defense witnesses, was about 30. So the idea was, let's start it. And then once we're done with the witnesses, we can have arguments to compel additional witnesses, which would focus mostly on CIA personnel.

That was sort of the core witness dispute that still hasn't been resolved. The, Judge McCall, who, who issued, who finally issued the suppression ruling, heard motions to compel one CIA witness, but that he hasn't ruled on that. And so if the case starts up again you know that that matter is still out there.

So getting to when the suppression hearing started, it really focused on FBI witnesses, the witnesses who had interrogated the defendants on Guantanamo Bay. And that really was for the, from the government's point of view, the, the most important witnesses because they were the ones who engaged in the discussion with the defendants about having a voluntary session. And so because the government had the burden to establish the voluntariness of the statements those witnesses were the, sort of the most important from the government.

But discovery kept emerging about the ties between those FBI agents and the CIA program. And that became a huge thread of kind of the ongoing discovery once the suppression motions had been filed. And even it started before the suppression motions had been filed, this idea that the FBI was more connected to the CIA program than the government had admitted that started before the suppression motions, but in a continued, once the hearing started.

Natalie Orpett: Okay, and let's pause to spell this out for a little bit because I think the, the notion that the defense would've requested a hundred witnesses, I think will be surprising to a lot of people. You know, what is it that they need a hundred witnesses for? This all has to do with the question of some statements made in 2007 and whether they were too close to the torture that the defendants had experienced in the black sites.

And I think at a certain point the government actually said that it would not contest, I don't think it ever agreed to the term torture, but it would not contest the treatment of the defendants in the black sites. So its argument was rather that these statements still could be voluntary, but the defense obviously felt otherwise and felt it needed to build a robust case to prove that. But why a hundred witnesses? What, what was it that they felt they needed to put together?

John Ryan: Yeah, that's a really important point. You're right. The government said, listen, we will, we'll agree to whatever you say, you describe the torture. You're right. They don't call it torture, but you describe the abuse any way you want and we'll pretty much sign off on it.

I think the defense's point of view was that the dry prose that you might come up with in a stipulation or maybe drawing from one of the summaries of a CIA cable is much different than having a witness talk about what was done in establishing sort of the real atmosphere of the black sites and the extent of the depravity.

I think that's what you get through witnesses and if you're talking about a death penalty in a case and the most important evidence, I, you know, I think they felt like that was really being deprived of their most important witnesses. And they had already lost access to the one black site that they appeared to have, that at least the government had some access to a control over, and that site was eventually decommissioned or, or lost from the government.

And so the idea that they would get to a physical black site that was taken away from them. And so I think this idea of having witnesses from the black sites became even more important for suppression and certainly for mitigation as well. If it got to that point that you really needed witnesses, that some of the people that the defense teams have spoken to from the CIA had PTSD or cried when they talked to the defense teams about what they saw or what they were part of, and that's really powerful stuff, right?

If you're involved in the program and you are feeling that way, sort of, you know, how would a defendant feel after having gone through, you know, three years of the program? And so it really to have a, a real fair analysis of whether a statement can be voluntary after that type of abuse, that witnesses are really essential.

Natalie Orpett: Okay. So I think the the amount of time we're having to spend just covering the, the tip of the iceberg here and we're only through 2019 or so, is a good reflection of why it's taking so long.

So I, I do wanna get to what happened in 2002, but one last point here that I think is a really, really important one that is off of a lot of people's radar is, as you say, one of the major themes that came out of the discovery as more information kept coming out on a rolling basis from the prosecution is that the interconnectedness of the FBI and the CIA between the black sites and those 2007 statements was much different than had originally been understood.

It wasn't just a question as the initial discovery was looking at, of whether the FBI agents had been relying on information that the CIA had obtained in the black sites. It was actually much more than that. So tell us a bit about that.

John Ryan: Yeah, so once suppression really got going, it was, it became clear that the defense teams had, from a layperson's perspective, kind of two big arguments. One is that their clients were tortured so badly in the years before coming to Gitmo that nothing they could ever say four months later could be voluntary.

The other is that the FBI really relied on torture-derived information way more than previously known, and they could never be considered sort of a clean confession because of such that indelible level of stain. It turned out that the FBI had agents that were detailed to the black sites and several FBI agents actually became CIA agents while they were at the black sites.

We know that for some of the FBI agents that were investigating the 9/11 case, they would be sending questions into the black sites through cables, what is, what are called intelligence requirements, and so, and then the, the CIA would provide information from, from the detainees and distribute it out to the intelligence community. And then FBI would get some of that and then come back to the CIA with, with some follow up questions.

So they were sending questions into the black sites and then before conducting the interviews on Guantanamo Bay in 2007, sort of the all important, let's get the clean confession. Before doing that, they traveled to a CIA location and reviewed what was learned from the black sites. So they reviewed, I guess, cables and other statements from the black sites before going to Guantanamo Bay for the interviews.

And then when they were on Guantanamo Bay, when they conducted those interviews, they typed up their notes in memoranda on a CIA laptop. And if the detainees during these sessions talked about abuse by the CIA that had to be documented in a separate document, that would be removed from the official statement that presented for the court case.

So it's important to note that FBI witnesses, you know, including one very really vehemently said yes, but we did not, I did not rely on CIA information when I interrogated the defendant. We had built our own case before the CIA even had a, even had captured the defendants between 2002 and 2003 in Pakistan. We'd done all of our, a lot of our case before that. It had gotten documents relevant to the case before that.

But nevertheless, if you go through all the details I just listed, there is a, this sort of interwoven nature between the CIA and the FBI that would make the January 2007 interviews sort of less clean, right? I mean it's, it just had, there was way more sort of overlap between the two agencies and so that became a huge part of the discovery and a huge part of the witness testimony during the suppression hearing.

Natalie Orpett: Right. And, and again, you know, if this were in federal court, there would be all sorts of pertinent precedent to work off of here, but because the military commission system was sort of built from scratch, all of this is not litigated, is untested.

And so even purely as a legal matter, setting aside the complexities of discovery and arguments about what's classified, what's subject to the national security privilege, which is another major barrier here, even separate from all of that, is the fact that the legal question of what constitutes voluntary in the context of commissions where all sorts of rules are different than in federal criminal court is, is part of what's taking this so long.

So let's shift to, to 2002, when, as you describe really well in the book, there was this absolutely shocking news that the prosecution and the defendants three of the defendants, not all five, not even the, the four who, because as I said before, one of them had been severed. Or actually no, he wasn't severed by this point. He was severed in 2023.

John Ryan: Correct. So for the, for in March of 2022, when, when it became known that the government and the defense teams were in, had entered into pretrial negotiations, that was for all five at the time.

Natalie Orpett: Oh, it was. Okay.

John Ryan: It was, yeah, because Ramzi bin al-Shibh had not been severed and Ammar al-Baluchi who later declined to part to reach plea agreements in this latest round, was part of the negotiations at the time. So it was for all five at the time. But then, you know, things change once, once those negotiations fell apart.

Natalie Orpett: Okay, so 2022 happens. This news comes out that the five defendants, thank you for clarifying that, were negotiating with the prosecution on pretrial agreements. I will say for folks who are interested in pretrial agreements which are sort of like plea agreements and criminal cases in civilian court, there are a lot of rules that make it different, but we have written about them quite a bit in Lawfare. So you can do some digging if you're interested.

They had entered into these negotiations with the prosecution and there was something that emerged called the policy principles and those for reasons I'm hoping you can explain, couldn't be dealt with by the prosecution, had to be sent to the White House instead. And this was part of the, the plea negotiations related to what would actually go into the pleas if they went through. So why did the White House need to be involved?

John Ryan: Yeah, you know, it's not entirely clear, I think some of the details of plea agreements such as like, how will the defendants live for the remainder of their time in U.S. custody in terms of access to family members or healthcare, the length of the sentences and other guarantees.

The idea, I think that this, that those are beyond the, the commuting authority who can sign, has authority to sign a plea agreement, but that these things are so important that like, listen, you need administration buy-in for this because you need the guarantees that they're gonna be stuck to also as administrations change.

So it was left with the Biden administration as we know, like you don't need that for there to be pretrial agreement because there were later pretrial agreements that were reached. This idea of the con, I think that really the conditions of confinement with respect to access to family members, healthcare, which some, at least, you know, one defendant in particular really wanted torture rehabilitation as part of it. So that this just was sort of above the pay grade in a sense of, of the people who negotiated the, the terms.

Natalie Orpett: Okay. So as it turns out the Biden White House declined to approve the policy principles, but as you say, three of the defendants did end up reaching plea agreements in 2023. That was on July 31st.

We don't have to dig into this one too much because I wrote a couple of pieces about it and I know we're already running long, but two days later then-Secretary of Defense Lloyd Austin issued an order saying that he was withdrawing from the plea agreements and that set off a whole other round of litigation. So what happened there?

John Ryan: Yeah, I've told people without having done a scientific analysis that those days on Guantanamo Bay were by far the, sort of the most intense and interesting, and probably got more news coverage than the prior 10 years combined easily. You know, sometimes the only stories on a day in court might be my, my company's Lawdragon or Carol Rosenberg from the New York Times. And of course when this happened, there were literally hundreds of stories by the time the next day rolled around. So yeah, it was, it was shocking. Looking back, I think people maybe were like, well, why did you think it was actually going to happen?

But it really felt like it was, and because, you know, the, the prosecution was sort of, they were gonna do these, at least KSM, at least Mohammad's plea, they were going to try to do that hearing and it just seemed like it was within reach. You know, it just seemed like it was, it was gonna happen. Everybody knew that there was gonna be a lot of opposition to it, but it didn't even seem that extreme to me, the opposition, you know, kind of the standard stuff that you would expect.

But yeah, it, it really set off litigation that ended up lasting a year. I didn't think it would last a year, but it really was basically a year, almost start to finish where the judge, the trial judge at this point, Matthew McCall, an Air Force Colonel, who really sat over the entirety of the suppression hearings after getting it from the third judge, he ruled that the, essentially the prosecution was, was the government was bound by the contract reached with the defendants, and so that the plea had to go forward. And the government appealed to the Court of Military Commission Review, which also at the very end of the year sided with the defense teams. And then the government took it to the D.C. Circuit Court of Appeals.

And Judge McCall had assembled everybody in January to, to hear at least Mohammed's plea in early, you know, the start of this year. And we were on, on base, and within about maybe 12 or so hours of Mohammed, beginning his guilty plea, the D.C. Circuit granted the government's request for a stay. And so Thursday night with pleas to start Friday morning, the D.C. Circuit halted the proceedings. And then that kind of brought us to where we are now because our arguments, you know, were later in the month and then eventually the D.C. Circuit sided with the government.

So it, it really was incredibly close to a resolution, even though there would still be two other defendants. But it was it felt about as close as you could get with that actually happening. In fact, the day before or I think two days before Mohammed’s scheduled plea the judge and the lead prosecutor, Clay Trivett and Gary Sowards, who is Mohammed's lead defense lawyer, all went through the script and sort of agreed to the language, which included the judge saying to Gary Sowards, does your client, agreeing to plead guilty to all charges and specifications and the charge sheet?

And he said, yes. And for some of the victim family members who were there with us, that felt almost like pleading guilty, you know, that was about as close as you can get. And then, you know, it just, it just didn't happen.

Natalie Orpett: Yeah. And just to make a point that I've come back to many times, one of the main ways in which the military commissions and military proceedings generally is different from in the civilian context is that sentencing proceedings are effectively a mini trial.

And as part of the plea agreements, as I understand it, there were several provisions that would allow for participation of family and for fact finding or, or recitation as the government was putting on its case for the sentencing. And that included things like allowing family members to speak at the proceedings and allowing them to send letters that the defendants promised to respond to, answering questions.

And so that would have been more substantive than I think a lot of people realize from the civilian context. A lot more sort of, of what you would've gotten in a criminal trial before a jury. But because that's not a familiar proceeding, I think a lot of the opposition to the deals related to the idea that there wouldn't be any further information, there wouldn't be closure. And for a lot of people, to be fair, it was the fact that the pleas took off the table, the possibility of the death penalty. And that is certainly a reason for which people were opposing the deal as well.

John Ryan: Yeah, I think you're right, and I think that definitely some defense lawyers and some victim family members felt that the government failed to, at some level, the message about how significant this sentencing trial would be was lost or never really presented.

And so there was a frustration there that people didn't really understand that this, the sentencing trial would pro, I think the government was estimating maybe about three months, you know, a real, basically longer than almost any other type of trial you'd ever get just for the sentencing. And it would've had a lot of, you know, powerful testimony.

At the same time there are victim family members who do understand how complicated the case has been and how, how many challenges there are to getting to a trial who still wanted a trial because they felt that, you know, a trial was right for this case and you would, there'd be the chance for the death penalty, but you'd also uncover perhaps more information relevant to the 9/11 plot. So, I think some of the politicians may have taken advantage of it, but clearly even some people who are well aware of like how, how unlikely maybe to ever have a full trial still wanted one.

Natalie Orpett: The notifications that the government sent out to families when the pleas were still happening before Austin's withdrawal had said that the sentencing would begin no earlier than summer of 2025. So, as you said, at the time, it did seem like some finality was actually in sight.

But let's talk about where we are now. So, as you said, the D.C. Circuit overturned the ruling of the district, the, the trial court, the military commission, as well as the Court of Military Commission's review, and found that the withdrawal from the plea agreements had worked. So they are no longer in place. And so we're returning to proceedings as before.

As I mentioned, there was in the midst of this, a suppression ruling for Ammar al-Baluchi, who was not one of the defendants who reached a plea agreement, and the judge did suppress the 2007 statements. So talk about where you see things now. The three defendants who had pled guilty but no longer have pleas in place are going to return to the proceedings sort of as they had existed before. But what is it gonna look like?

John Ryan: I don't think anyone knows right now, because it's strange for the case to have come so close to a resolution. And then also really, as you said, get a resolution on the biggest pretrial issue for the one defendant who remained in that he prevailed in his suppression dispute, which really, which is sort of the end of the book in a sense, because the book really focuses on the CIA litigation and then, you know, eventually that epic hearing that started in September 2019 comes to a close.

But the, the problem, of course, is that the three defendants who remain in the case, exited the suppression litigation about, you know, not quite a half year before it really ended. And so they participated in most of it, but there was a lot that happened after they, they left. And so there are witnesses that they would be entitled to recall to move forward with their suppression cases if they have to.

But there were also witnesses who were specific to Ammar al-Baluchi, who the defendant who stated in the litigation, that were specific to him. And so the defense teams will have similar types of witnesses for their client if they go forward with suppression. So suppression for the three defendants who just lost their plea agreements really could go on for some time.

But of course they’re, they're challenging, they will challenge the D.C. Circuit's ruling. So right now the government is in dispute with the defense teams about whether they can go forward with other pretrial litigation while the appeal of the circuit's ruling is pending. So the defense teams are still hopeful, or at least they're, they're still moving forward with the, with litigation that they might get their plea agreements back.

But whether or not the case will move forward while that is pending is unclear, and because the government is also, because the government is challenging their loss of the FBI statements in the suppression hearing for Ammar al-Baluchi, the al-Baluchi team, and the government is in dispute over whether that hearing can go forward while the government is appealing that that ruling. And of course, Ramzi bin al-Shibh is severed from the case as presently because he was determined to be incompetent, but the government will want him to be prosecuted again.

So it appears to be that the 9/11 prosecution will be moving on, would be moving on three separate tracks, at least that is one sort of possibility right now. There's just probably as much uncertainty now as there as there has been in a long time.

Natalie Orpett: Right. Yeah, and just just to clarify a couple of points there, the ruling in favor of al-Baluchi’s motion, as you noted is not binding and is in inapplicable to the other the three defendants who had reached pleas to their cases. So, as you say, those motions will have to continue being argued.

But the thing that's complicated about it, as you alluded to, is because those defendants are still hoping that they can revitalize their plea agreements, they cannot litigate any of these motions under the terms of their agreements. So in order to try to maintain their agreements, they have to continue to perform, which means that they cannot litigate these motions.

And so there are competing interests at play here. All the while the military commission's judge is going to have to decide how to move forward in the face of double uncertainty, as you say as there, it's likely that the government will try to appeal this finding as well with respect to suppression. So it's, it's going to be complicated, as you say.

Okay. So to wrap up here, I, I wanted to cite to you something you said in the book that I found really powerful. You said it seemed like one of those days where it felt like the lessons of Gitmo would remain trapped on the island. So there's a lot in there, but I guess to, to end things, what are the lessons that you wish weren't trapped there?

John Ryan: Yeah, I think that came from a place inside of me that is, there's so little attention to Guantanamo and it just seems like so much is lost there because there's just not a lot of coverage on the case. The exception being the, the plea deals and then Austin, Secretary Austin's attempted withdrawal. Like aside from that, there's been so little attention.

So the real li-, and that the motivation for writing the book is to get this era of Guantanamo Bay and the 9/11 case sort of in one place so that it's a resource for people because I think a lot of it would be lost. I really appreciate the publisher Skyhorse for agreeing with me that the story is the pretrial litigation, and not let's wait for a trial because I heard that a lot.

I think what's happened over the past 10 years and a little bit before I got there really is important and I hope it's not lost forever and not just available on transcripts. But I think the way that the, the case has consistently butted its head against itself over this, kind of, I think failing to recognize that there's no way to sort of, there's no way to reconcile removing someone from the law and then putting them back in it, in the United States.

It's possible maybe in other countries, but I don't think in the United States, if, if you do that it, you can then prosecute someone. Or if you do, you sort of make concessions and get the case done differently. Think about how sort of crazy it is that the government would come to its recognition that plea deals are kind of the only way out so far into the litigation.

I think there's a desperation there to sort of, we can do this, and it's not a criticism of the current prosecutors or the ones I've known at all. It's sort of a government position that we, we can really do this when it, it may not be possible, and it's not. I take very few opinions in the book. I mean, I, I take more opinions in the book than I do in my reporting, but I'm not really saying anything other than what I'm seeing, which is sort of, it's been impossible to, you could perhaps torture people and then put them in a court that isn't a real court.

I know some people think this isn't a real court, but when you have the types of lawyers that they do and the types of resources that they do with 20-member defense teams and people who have some of the most experienced death penalty lawyers in the country, once you do those two things, you're not gonna get to the other side of it, right?

There is that tension that the book puts out there for people, I think you have to get through it to come to that realization. So if at some point, you know, there's a temptation to use to take suspects outside of the law there should be an understanding of what the result is if you want to prosecute them. For some people, the prosecution is really important. For other people like the CIA, it's not, it's probably not that important. So, that's what I see the, the real lesson from Gitmo is this sort of understanding of, of what I call the American split personality. It's not very good for running a court case.

Natalie Orpett: All right. I think that's a great place to leave it. John Ryan, thank you so much. Congratulations on the book.

John Ryan: Thank you for having me. I really appreciate it.

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