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The commission in recess until 0900 hours tomorrow, when defense counsel for Mr. Mohammed, Mr. bin ‘Attash, and Mr. Al Hawsawi will address the LHM statements in a closed session to present their classified arguments.

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In conclusion: Engle tells the judge that admitting the LHM statements carries a significant societal cost. He argues that trying the 9/11 case using these statements obtained by torture would damage the United States’ reputation in the eyes of the world.

He further argues that the government relied on selectively chosen excerpts rather than the full conversation with other detainees, and that these excerpts do not demonstrate any detailed knowledge of the 9/11 attacks.

Engle challenges the government’s recording offered as evidence of voluntariness, noting it was translated by a linguist who does not speak bin ‘Atash’s dialect.

Engle highlights a contradiction between the two interrogating agents: Gaudin testified that bin ‘Atash introduced the topics himself, while McFadden asserted that the agents were the ones who introduced them.

None of the behaviors or conditions bin ‘Atash exhibited during the LHM process support the government conclusion that his statements were voluntary.

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Engle argues that the CIA starved and tortured bin ‘Atash to shape him into the figure the FBI needed for the LHM.

During his custody, bin ‘Atash repeatedly asked CIA personnel for more food as his weight continued to drop while interrogations continued. He later passed a 25 cm round worm that further contributed to his weight loss while CIA was starving him.

Engle argues that bin ‘Atash never saw himself as a senior Al Qaeda leader; rather, he was repeatedly told he was one only after his capture. Engle further contends that the torture bin ‘Attash endured altered his own account of his involvement, from 2004 through the LHM.

Engle also notes that the admonishment language changed in Oct 2007. The version given to bin ’Atash in Jan 2007 included language about the detainee being returned to prior custody, but that language was removed in the later admonishments.

Engle states that the admonishments given to detainees during the LHM interrogations did not actually confer any rights. He points to testimony in the al Nashiri case, where former Special Agent McFadden when asked whether he advised al Nashiri of any rights responded, “not so much.”

Engle argues that bin ’Atash did not differentiate among government agencies when he gave his LHM statement. He relies on Judge McCall’s findings from the suppression ruling in Mr. al Baluchi’s LHM litigation.

He maintained that Mr. bin ‘Atash ’s letters to his family contain no confession of war crimes and that the government’s portrayal is false. All of the letters post date the LHM interview, which does not support the government’s position.

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Engle highlighted that detainees including U.S. servicemembers may no longer be able to rely safely on @icrc.org letters to securely communicate with their families.

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Engle argued that the USG’s use of Mr. bin ‘Atash’s @icrc.org letters to his family was “reckless,” and pointed out that the @icrc.org had specifically instructed the parties not to use ICRC documents and information in litigation because it would undermine their humanitarian work.

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Engle told the judge he did not believe Mr. bin ‘Atash was ever warned that what happened to him in the black sites would happen again. Instead, he was told by the former Camp 7 commander that he was now in DoD custody.

bin ‘Atash was told at location 2 that all of his privileges depended on his cooperation. He was also warned that “the team” would be fully aware of his behavior even if different individuals spoke with him in the future.

Engle argues, EITs are designed to inhibit a detainee’s ability to make decisions.

Engles told the judge that Dr. Mitchell followed a ritual before applying EITs as part of fear conditioning. Citing Dr. Mitchell’s book Enhanced Interrogation, page 158, Engles noted that the use of a towel was employed as a tool to trigger fear.

Engle told the judge that Mr. bin ‘Atash was only allowed to sleep at interrogator mercy. In one instance, the interrogator woke him, accused him of lying, and said he would now have to suffer.

Engle showed the judge and other parties, cables show the CIA viewed water dousing as highly effective. Some report that merely threatening it affected Mr. bin ‘Atash . In one instance, he was stripped naked and began answering questions before the dousing even started.

NZ7 removed Mr. bin ‘Atash ’s prosthetic leg during standing deprivation.

Dr. Mitchell testified that Mr. bin ‘Atash was especially vulnerable because he is an amputee.

NZ7 later claimed in an interview that “bin ‘Atash wants to be hurt,” which Engle cited as evidence of the distorted mindset of black site interrogators.

QY7 left the interrogation room after witnessing NZ7’s violent water dousing of Mr. bin ‘Atash . Another CIA officer vomited.

Mr. Engle argued that the mindset toward Mr.bin ‘Atash was punitive, summarized by the attitude: “hurt them once, hurt them twice, hurt them more.”

Dr. Mitchell testified that he and Dr. Jessen ran one program, while Mr. bin ‘Atash was subjected to a separate program run by CIA officers NX2 and NZ7 who ignored authorized guidelines. Engle argued this alternate program was neither humane nor compliant with the Geneva Conventions.

The FBI benefited from the CIA’s RDI program. While Mr. bin ‘Atash was held in the black sites, the FBI sent questions for him to answer regarding Hazmi and Mihdhar, requesting that the CIA pose those questions to him. Those FBI questions are directly linked to the charges in this case.

Engle presented a cable showing that NCIS, the agency for which former Agent McFadden worked, sent an electronic message to the CIA thanking them for providing numerous statements from “Khallad.”

Agents who interviewed Mr. bin ‘Atash also benefited from information obtained at the black sites information collected from him and others under torture.

The unique context of the RDI program, combined with the restrictive conditions of confinement in Camp Seven, transformed even small and seemingly simple interactions into opportunities for agents to extract information from Mr. bin ‘Atash after four years of isolation and incommunicado detention.

By 2007 and 2008, the agents were taking advantage of the conditioning created by the RDI program: Mr. bin ‘Atash had been trained to answer questions. The agents initially gathered infor from him and later returned with evidence to confront him during the Oct 2007 and Feb 2008 interrogations.

Mr. Engle also emphasized that Mr. McFadden testified that Mr. bin ‘Atash was not attempting to conceal information. The conditions of the RDI program had profoundly affected him as an individual, and the program itself ultimately benefited the agents who later collected the LHM statements.

Judge McCall’s findings in the al Baluchi case were based on firsthand observation, including testimony from individuals directly involved in the LHM process. Judge McCall concluded that Mr. al Baluchi’s LHM statements were shaped and benefited from his prior experience in the RDI program.

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Judge Acosta suppressed statements in the Nashiri case that were obtained by the same agent who interrogated Mr. bin ‘Atash .

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In responding to the judge’s order, Engle urged the court to compare Judge Fitzgerald’s opinion with Judge McCall’s opinion in the al Baluchi LHM litigation to understand why Fitzgerald’s reasoning was flawed. He identified three key facts that undermine the government’s voluntariness argument:

Mr. Engle argued that the government cannot point to any federal or other court decision holding that a detainee’s statements are voluntary after being subjected to EITs and the RDI program.

In response to the judge’s question, Engle explained that Mr. bin ‘Atash had been told explicitly that the late 2007/2008 interrogations were a continuation of the January 2007 session, and therefore there was no meaningful break in interrogation for any of them.

At the time those statements were made, Mr. bin ‘Atash had no defense team, had not received Miranda warnings, and had no contact with the outside world.

Mr. Engle, arguing on behalf of Mr. bin ‘Atash motion to suppress, asserted that the entire design of the RDI program was intended to extract and coerce statements from his client.

Mr. Sowards, counsel for Mr. Mohammed, asked the judge to provide a rationale if he determines that the government has met its burden of proof regarding the voluntariness of the LHM statements.

Mr. Ruiz argued that canceling the June and July hearings will give the military commission additional time to fully address the issues before the judge, determine how to proceed with the LHM matter, and allow the defense to continue preparing its evidentiary motions.

Mr. Connell, for Mr. al Baluchi, the Trial Conduct Order timeline will depend on several elements, including the suppression of the LHM statements, and the decision of the CMCR in Mr. al Baluchi’s case.

On Trial Conduct Order, Mr. Trivett. for the government, asked the judge not to schedule any hearings for the remainder of the year, arguing that this is the most efficient use of time because the Nashir trial is set to begin in October 2026.

First up, we're expecting to hear Connell's view on a forthcoming Trial Conduct Order. Matthew Engle's arguments on suppressing statements his client, Khallad bin Atash, made to the FBI in 2007 after years in CIA black site incommunicado detention will follow.

Day 3, week 2 of the 57th 9/11 pretrial hearings to start at 0900 at Guantanamo Bay, Cuba.

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MilComs in recess until 0900 Wednesday.

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After Matthew 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.