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UNCLASSIFIED//FOR PUBLIC RELEASE PIKNANK KITKANINH MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA V. KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZI BIN AL SHIBH, ALI ABDUL-AZIZ ALI, MUSTAFA AHMED ADAM AL HAWSAWI AE628 (AAA) UNCLASSIFIED NOTICE Mr. al Baluchi's Motion to Suppress Alleged Statements as Involuntary and Obtained by Torture 15 May 2019 In accordance with the Military Commission Trial Judiciary Rules, the defense provides this unclassified notice that it has filed a classified version of the above captioned motion. The classified version has been filed by hand delivery to the Trial Judiciary and to the parties. Attachment: A Certificate of Service Very respectfully, Ils/l JAMES G. CONNELL, III Learned Counsel ▪lls!! ALKA PRADHAN Defense Counsel ▪lisil STERLING R. THOMAS Lt Col, USAF Defense Counsel lls!) BENJAMIN R. FARLEY Defense Counsel MARK E. ANDREU Capt, USAF Defense Counsel Counsel for Mr. al Baluchi Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 1 of 1205

Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Attachment A UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 2 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE CERTIFICATE OF SERVICE I certify that on the 15th day of May, 2019, I electronically filed the foregoing document with the Clerk of the Court and served the foregoing on all counsel of record by email. Filed with TJ 15 May 2019 JAMES G. CONNELL, III Learned Counsel UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 3 of 1205

Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA V. KHALID SHAIKH MOHAMMAD, WALID MUHAMMAD SALIH MUBARAK BIN 'ATTASH, RAMZI BIN AL SHIBH, ALI ABDUL-AZIZ ALI, MUSTAFA AHMED ADAM AL HAWSAWI (UAE628 (AAA) Mr. al Baluchi's Motion to Suppress Alleged Statements as Involuntary and Obtained by Torture 15 May 2019 1. Timeliness. This motion is timely filed pursuant to AE524LLL Ruling.¹ 2. Relief sought. Mr. al Baluchi respectfully requests the military commission to prohibit government use of any statements he allegedly made to agents of the United States government² at any time, on the following bases:³ 2(To be clear, the scope of this motion is not limited to statements allegedly made in January 2007, but reaches any statements allegedly made to agents of the United States government at any time. 3 In AE502Y (AAA) Mr. al Baluchi's Combined Response to AE502V Trial Conduct Order and Reply to AE5020 Government's Consolidated Response to AE502L (MAH) and AE 502J (AAA) Witness Lists for Personal Jurisdiction Hearings at 135-36, Mr. al Baluchi laid out seven grounds for suppression of his alleged statements, five of which relate in some way to UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 4 of 1205

Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE (a) that the statements were obtained by torture and cruel, inhuman, and degrading treatment within the meaning of 10 U.S.C. § 948r(a), MCRE 304(a)(1), and United States Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment Art. 15;4 (b) that the statements were not voluntary within the meaning of the Due Process Clause, 10 U.S.C. § 948r(c)(2)(B), and MCRE 304(a)(2)(B)(ii); (c) that the statements are not reliable and possessing sufficient probative value within the meaning of the Due Process Clause, 10 U.S.C. § 948r(c)(1), and MCRE 304(a)(2)(A). 3. Burden of proof: Constitutionally, the burden of proof is on the government to prove the voluntariness of statements by a preponderance of the evidence. This burden applies whether the coercion occurred at the time of the challenged statements or at an earlier time. Under MCRE 304(d), "When an appropriate motion or objection has been made by the defense under this rule, the prosecution has the burden of establishing the admissibility of the evidence." "The military judge voluntariness. These five grounds are condensed here to three. Mr. al Baluchi will present his arguments for suppression of statements on grounds other than voluntariness in a separate motion. G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51. U.N. Doc A/39/51 (1984). 5 Lego v. Twomey, 404 U.S. 477, 489 (1972); see also, e.g., United States v. Kelsey, 917 F.3d 740, 751 (D.C. Cir. 2019). 6United States v. Cuento, 60 M.J. 106, 108-09 (C.A.A.F. 2004); see also Al Rabiah v. United States, 658 F. Supp. 2d 11, 36 (D.D.C. 2009). UMCRE 304(d). 2 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 5 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE must find by a preponderance of the evidence that a statement by the accused comports with the requirements of [MCRE 304] before it may be received into evidence."8 4. Overview: At the height of World War II, the Supreme Court wrote: The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.⁹ The prosecution seeks the blessing of this military commission to use statements wrung from Ammar al Baluchi through physical and mental torture in secret custody by organizations possessed of unrestrained power. This motion fundamentally presents the question: does America actually have that kind of government? Filed with TJ 15 May 2019 UMCRE 304(d)(1). Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944). UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 6 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE Both legally and factually, torture is not an isolated event, but involves a process of establishing mental rather than physical control over the prisoner. In other words, the aim of torture in the "RDI Program" as in every other instance of its use is to use intimate, personal violence to establish a situation where questioners need not use violence at all. Torturers do not beat answers out of their victims; torturers beat the free will out of their victims, and answers come naturally. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 7 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE Dr. James Mitchell, the architect of the CIA's torture program, drew on tried-and-true torture techniques used both by American enemies and allies in the Cold War. He also, however, drew on "Pavlovian classical conditioning" 10 to establish what the CIA called "learned helplessness." He has explained that in his experience with Mr. al Baluchi and others, "only two EITs were required for the conditioning process: walling and sleep deprivation."" Interrogators used these techniques, and many more, on Mr. al Baluchi to obtain a "compliance posture" in which he provided answers on a wide variety of topics over hundreds of interrogations. 10 James E. Mitchell & Bill Harlow, Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America 46 (2016). 11 Id. at 235. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 8 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE The military commission cannot admit these statements as evidence, consistent with the standards of justice which prevail in a democratic state. The statements are the end product of a massive and complex interagency program of torture designed to induce interrogation compliance. Congress passed 10 U.S.C. § 948r(a) precisely for this situation, as no other U.S. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 9 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE agency obtains statements by torture. Although "involuntary” is too weak a description of the comprehensive destruction of free choice, the involuntariness and unreliability of Mr. al Baluchi's statements may serve as an alternative ground for their suppression. In any case, the military commission must prohibit the use of Mr. al Baluchi's statements to U.S. agents for any purpose and in any hearing. 5. Statement of facts: 13 13 Counsel for Mr. al Baluchi have frequently argued that the government has produced summaries of RDI-related documents mostly stripped of specific dates. There are also large gaps in discovery, either through natural degradation of information over time (i.e. the necessary documents are missing or destroyed), or have been withheld by the government or the relevant agencies. As a result, some dates and facts herein (noted) are derived from or hypothesized based on other known information. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 10 of 1205

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UNCLASSIFIED//FOR PUBLIC RELEASE Additional meetings took place in July 2002 with Director Mueller, D'Amuro, and Mueller's Chief of Staff Daniel Levin, who recalled attending a meeting at the National Security Council at which the approved techniques were discussed. 52 Mueller stated categorically to the OIG that $3 52 U Id. at MEA-FBI-00022836. See also, Frontline, "John Rizzo: The Case for Enhanced Interrogation." (9 May 2015). 53, ld. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 18 of 1205

Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE 14. After completing several drafts during June and July 2002, the OLC eventually finalized two legal opinions authorizing use of the "enhanced" interrogation techniques, and sent them to Alberto Gonzales and Rizzo on 1 August 2002.57 Attachment E at MEA-JDM-000000283. UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 19 of 1205

Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE 16. By 9 August 2002, the interrogation team concluded that Mr. Husayn likely did not have further actionable intelligence. 63 Yet his torture continued for two more weeks, even though he had been broken enough to act as accomplice to his own torture: DETENTION SITE GREEN cables describe Abu Zubaydah as "compliant," informing CIA Headquarters that when the interrogator "raised his eyebrow, without instructions," Abu Zubaydah "slowly walked on his own to the water table and sat down."21 When the interrogator "snapped his fingers twice," Abu Zubaydah would lie flat on the waterboard. Despite the assessment of personnel at the detention site that Abu Zubaydah was compliant, CIA Headquarters stated that they continued to believe that Abu Zubaydah was withholding threat information and instructed the CIA interrogators to continue using the CIA's enhanced interrogation techniques. 202 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 20 of 1205

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127 Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE 43. Also in April 2005, a CIA psychologist stated that Mr. bin al Shibh had remained in isolation for two and a half years, which was having a "clear and escalating effect on his psychological functioning." 127 The psychologist noted that because Mr. bin al Shibh was previously a "high functioning individual," his deterioration was all the more SSCI Executive Summary at 80. UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 34 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE "alarming." 128 The SSCI Executive Summary noted the "onset of psychological problems brought out by . long-term social isolation and his anxiety that the CIA would return to using its enhanced interrogation techniques against him. "129 128 Id. 129 Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 35 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE 46. A cable written by Mitchell and Jessen in August 2002 recommended that " 'the aggressive phase [against Abu Zubaydah] should be used as a template for future interrogations. ' not because [the torture] produced useful information, but because [it] confirmed that Abu Zubaydah did not possess the intelligence that CIA Headquarters » 133 [believed he had]." Mitchell and Jessen stated that "Our goal was to reach the stage where we have broken any will or ability of subject to resist.. [the two psychologists] familiar with interrogation, exploitation, and resistance to interrogation should shape compliance of high value captives prior to debriefing by substantive experts."134 "135 One 47. By mid-2003, senior CIA officials recognized that subject matter experts often provided interrogation requirements that were "not valid or well thought out." senior CIA interrogator told the Office of Inspector General that "in every case so far, Headquarters model of what the detainee should know is flawed." "136 133 SSCI Executive Summary at 46. 134 +Id. 135, SSCI Executive Summary at 121 n. 722. 136 Id. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 36 of 1205

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UNCLASSIFIED//FOR PUBLIC RELEASE against Mr. Mohammad. The SSCI Executive Summary stated that on 6 March 2003, the FBI reopened its investigation into Ohio truck driver Iyman Faris. 143 On 17-18 March 2003, amidst Mr. Mohammad's 183 incidences of waterboarding, the CIA "queried the FBI for additional details' on Mr. Faris, including a readout on his current activities and plans for FBI continued investigation," primarily because of statements made by Mr. Mohammad during his torture. 144 On 20 March 2003, the FBI picked up Mr. Faris for questioning, and told SSCI staff that they did so pursuant to the cables received from the CIA regarding Mr. Mohammad's statements during his torture interrogations. 145 Therefore, "the FBI investigators went into [the interview with Mr. Faris] armed with the information reveals by [Mr. Mohammad and Mr. Khan]" following use of torture 146 techniques. On 24 March 2003, immediately after Mr. Mohammad underwent his "fifteenth and final documented" waterboarding session, he was confronted with torture- acquired reporting from Majid Khan as well as FBI reports from Iyman Faris about the 147 Parachas. Mr. Mohammad, "boxed in by the new reporting," reported the Parachas' plan to smuggle explosives into the United States. 148 143 Id. at 282. 144, SSCI Minority Views at 60. 145 ▶Id. 146 Id. 147 SSCI Executive Summary at 92. 148 Id. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 38 of 1205

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163. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE 57.0 Director Mueller's last reported phone call to DCI Tenet regarding requested access to Mr. Mohammad was on 21 May 2003.163 SSCI Executive Summary at 94 n.538. UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 41 of 1205

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UNCLASSIFIED//FOR PUBLIC RELEASE 85. The SSCI Report commented on the CIA's lack of records detailed the rendition procedures 226. during an inengation. There are also few CIA records setsiling the renditions process for detainees and their transportation or between detention sites CA mods do include detainee comments on their remdition experiences and photographs of demaisers in the process of being transported. Based on s Petrapas kellers wumpedy se II by a see opacity herishek weed that here snaked becker e:łellitecoire pahoche ss sitAe Dilip na hot, l be neede - Tally sele isoner's creds on it notes Ra He curement if winee tree to decinees were of c Rise anek sood perted se helpedptumhe De), Howds us toll, blows cover comes Wowpps) ફેરes deate borop the lows, as an & took me eye time or Deepફેકટ કરenue wore Hero 226 TU) SSCI Executive Summary at 64 n.318. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 60 of 1205

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UNCLASSIFIED//FOR PUBLIC RELEASE END OF MAY EARLY JUNE 2003 Head Trauma (Insury) Incident I At the CIA Black site. In the very first clays. After Us Chov Agents shaved my Head. Then they smashed my Heed against the wall repeatedly. Mr. al Baluchi explained: "It continued until I lost count at each session. As my head was being hit each time, I would see sparks of light in my eyes. As the intensity of these sparks were [sic] increasing as a result of repeated hitting. I felt a strong jolt of electricity in my head then I couldn't see anything, everything went dark and I passed out.”259 259 Id. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 71 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE Mr. al Baluchi then woke up "in a different place suspended to the ceiling in a dark cold cell. I don't know for how many hours I was unconscious. "260 Mr. al Baluchi described being [n]aked while my legs were swollen as a result of extended standing. My legs couldn't support my body. The handcuffs were cutting my wrists which were pulled over my head. A very sharp throbbing pain in my head. There was an extremely loud and disturbing music with a mixture of grating, screeching, shrill sounds cutting into my ears pounding my mind. 261 Mr. al Baluchi further states that "every now and then an agent would come and hit the steel door with a metal bar in his/her hands, making verbal threats pointing to the metal bar in addition to flashing a sharp light into my face. [following the sleep deprivation] I lost my ability to sleep ever since." >>262 98. Regarding walling, Mr. al Baluchi recalled that 263 260 Id. 261 d. 262 Id. 263 Id. at Att. F. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 72 of 1205

Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE for example when they say walling it's in vaality Head smuishing where thing the something overned my neck to gain full control of my bread in order to hoursh it and hit it against the wall repeatedly for dozen and dozer of times. UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 73 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE Mr. al Baluchi's walling was so severe that he actually sustained a injury - unsurprising given that his head was smashed against the wall so violently by the traince interrogators that they had to keep taking turns as they became fatigued. 268 Dr. Stephen Xenakis, who examined Mr. al Baluchi in 2015, stated that, 269 Id. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 74 of 1205

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UNCLASSIFIED//FOR PUBLIC RELEASE 145. 146. 147. At the end of May 2004, DCI Tenet “suspended" use of the techniques pending reauthorization by the OLC, and issued a formal memo on 4 June. On 2 July 2004, Attorney General Ashcroft and Deputy Attorney General James Comey "attended a meeting of select National Security Council principals, the topic of which was the proposed interrogation of [detainee] Janat Gul." 406 On July 22, Attorney General Ashcroft sent a letter to acting CIA Director John McLaughlin stating that nine of the 1 August techniques were authorized, except the waterboard - primarily because "the technique had been employed in a different fashion than that which the DOJ initially 5407 approved." On 30 July, the CIA provided descriptions of four new techniques that they 408 characterized as a "supplement" to the 1 August 2002 memos. These were dietary manipulation, the abdominal slap, nudity, standing sleep deprivation, the use of diapers, and water dousing, all of which had already been used by the CIA by that point on Mr. al Baluchi). 409 ▪Once again, the CIA was asking for retroactive authorization for techniques described far differently in their letter than they were applied in practice. For example: 410 406 SSCI Executive Summary at 414. 407 Hd. 408, Id. 409 Id. at 414-415. 410 Id. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 110 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE 148. how the CIA had applied the techniques in practice. The CIA description of a minimum calorie intake was incongruent with the history of the program, as no mininuum caloric intake existed prior to May 2004 and the March 2003 draft OMS guidelines allowed for food to be withheld for 2328 one to two days.2 The CIA represented to the OLC that nude detainees were "not wantonly exposed to other detainees or detention facility staff," even though nude detainees at the CIA's DETENTION SITE COBALT were "kept in a central area outside the interrogation room” and were "walked around" by guards as a form of humiliation. The CIA's description of water dausing made no mention of cold water immersion, which was used on CIA detainees and taught in CIA interrogator training.2330 The CIA representation describing a two-hour limit for the With Mr. Goldsmith having resigned in July 2004 following his withdrawal of the 1 August memo, Acting Assistant Attorney General Daniel Levin - formerly Director Mueller's Chief of Staff at the FBI was directed by Mr. Comey to prepare a replacement. Mr. Levin, who stated that his reaction to the 1 August 2002 memo was "[the same as] I think everybody who reads it has 'this is insane, who wrote this?" 411 wrote and received a series of letters to Scott Muller, CIA General Counsel, to clarify use of the techniques. 412 411. Department of Justice Office of Professional Responsibility, Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Related to the Central Intelligence Agency's Use of "Enhanced Interrogation Techniques" on Suspected Terrorists (29 July 2009) at 28 ("OPR Report"). 412 See, e.g., Letter from Daniel B. Levin (Acting Ass't Att'y Gen., OLC) to Scott W. Muller (Gen. 2004), Counsel, CIA) (July 22, http://www.achu.org/torturefoia/released/082409/olcremand/2004olc65.pdf. available at Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 111 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE 150. Mr. Levin ended up completing only a 29 December 2004 memo replacing John Yoo's previous memo to Alberto Gonzales on the applicability of the torture statute and the CAT to the CIA's use of interrogation techniques. That memo concluded that "[w]hile we have identified various disagreements with the August 2002 Memorandum (including, crucially, the difficulty in determining "gradations of pain"), we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." +416 416 Memorandum from Daniel B. Levin (Acting Ass't Att'y Gen., OLC) to Deputy Attorney General, DOJ, Legal Standards Applicable Under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004) [hereinafter Torture Statute Levin http://www.justice.gov/olc/18usc23402340a2.htm Memo], available at Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 112 of 1205

151. UNCLASSIFIED//FOR PUBLIC RELEASE Mr. Levin's failure to complete a memo replacing the 1 August 2002 "techniques" memo to Rizzo was a source of concern all the way up to the White House. 417 The job now fell to Acting Assistant Attorney General Steven Bradbury, who submitted two new memos for Mr. Rizzo on 10 May 2005. The first evaluated specific interrogation techniques and ▪assumed that, prior to interrogation, each detainee is evaluated by medical and psychological professionals from the CIA's Office of Medical Services to ensure that he is not likely to endure any severe physical or mental pain or suffering; and that medical and psychological personnel are on-scene; • discussed in detail the following techniques: dietary manipulation, nudity, attention grasp, walling, facial hold, facial slap (insult slap), abdominal slap, cramped confinement, wall standing, stress positions, water dousing, sleep deprivation, and waterboarding; ⚫found that, subject to the understandings, limitations, and safeguards discussed, including ongoing medical and psychological monitoring and team intervention as necessary, each of the techniques, considered individually, would not violate the Torture Statute, but that the issues raised by sleep deprivation and the waterboard require great caution in their use; determined that, in sharp contrast to those practices universally condemned as torture over the centuries, the techniques considered here 417 OPR Report at 142. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 113 of 1205

152. UNCLASSIFIED//FOR PUBLIC RELEASE were carefully evaluated to avoid causing severe pain or suffering to the detainees. 418 The second memo evaluated the combined use of the techniques, and concluded that "the combined use of these techniques also cannot reasonably be expected to cause "419 severe physical suffering." Mr. Comey vigorously disagreed with the issuance of the second "combined use" memo, stating in emails that the second opinion "would come back to haunt. the Department," and that "when this all comes out, [he hoped that] the hit is taken by those individuals who occupied positions at OLC and OAG and were too weak to stand up for those principles that undergird the rest of this great institution." "420 418 Constitution Project report at 154, citing Memorandum from Steven G. Bradbury (Acting Ass't Att'y Gen., OLC) to John A. Rizzo (Senior Deputy Gen. Counsel, CIA), Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value Al Qaeda Detainee (May 10, 2005 [No. 13]), available at http://media. luxmedia.com/aclu/olc_05102005_bradbury46pg.pdf 419 Memorandum from Steven G. Bradbury (Acting Ass't Att'y Gen., OLC) to John A. Rizzo (Senior Deputy Gen. Counsel, CIA), Application of 18 U.S.C. §§ 2340-2340A to Certain Techniques That May Be Used in the Interrogation of a High Value Al Qaeda Detainee (May 10, 2005 [No. available http://media. 12]) luxmedia.com/aclu/olc_05102005_bradbury_20pg.pdf. at 420. Email from James Comey to Chuck Rosenberg, "Re: Interrogation." 28 April 2005, available at https://www.nytimes.com/interactive/projects/documents/justice-department- communication-on- interrogationopinions?action=-click&contentCollection-Politics&module=RelatedCoverage® ion-EndOfArticle&pgtype=article#p=1. Comey was not the only person appalled by the Bradbury memos. Sen. Lindsey Graham, one of the co-sponsors of the Detainee Treatment Act in 2005 along with Sen. McCain, said of the legal memoranda that approved waterboarding, "the [legal] guidance that was provided during this period of time, I think, will go down in history as some of the most irresponsible and shortsighted legal analysis ever provided to our Nation's military and intelligence communities." In an interview with Constitution Project staff, Graham said: "They Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 114 of 1205

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UNCLASSIFIED//FOR PUBLIC RELEASE 198. 199. According to a former Camp 7 OIC, Camp 7 was built "sometime in 2004" for use by the CIA, although it was likely not used for long since the CIA moved detainees out of Guantanamo Bay in anticipation of the Supreme Court's decision in Rasul v. Bush. 523 On 6 September 2006, Mr. al Baluchi was transferred to Guantanamo Bay, Cuba. 523 T. 06/03/16 at 12096. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 150 of 1205

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UNCLASSIFIED//FOR PUBLIC RELEASE 214. In October 2006, all of the detainees met with ICRC representatives for the first time and gave detailed accounts of their torture and interrogations over the previous 3-4 years. The CIA shrugged:54 claims to the CIA. Acting CIA General Counsel John Rizzo emailed the CIA director and other CIA senior leaders, following a November 8, 2006, meeting with the ICRC, stating: "lals described to us, albeit in summary form, what the detainees allege actually does not sound that far removed from the reality. the ICRC, for its part, seems to find their stories largely credible, having put much stock in the fact that the story each detaince has told about his transfer, treatment and conditions of confinement was basically consistent, even though they had been incommunicado with each other throughout their detention by us 549 SSCI Executive Summary at 160. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 164 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE 218. 219. Medical doctor and psychotherapist Dr. Pierre Duterte, an international torture expert, had stated that "Aside from the effects of physical torture, I have observed the following physical manifestations of post-traumatic stress disorder and other traumas among my patients: digestive problems, vision problems, body aches, and headaches. In my opinion, physical and psychological effects may occur even twenty or more years after the initial trauma." 55553 Dr. Duterte also stated that "[S]evere trauma may 'fragment' the memory such that many patients can no longer recall correct facts of conditions about a traumatic event, and are unable to have chronological and logical memory of the traumatic events. They 553 AE425E, Att. B (Declaration of Pierre Duterte). Dr. Duterte is expected to testify at the evidentiary hearing. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 165 of 1205

554 Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE instead recount memories that may contain details created as coping mechanisms during or after the trauma. 55554 Id. UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 166 of 1205

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UNCLASSIFIED//FOR PUBLIC RELEASE 567 568 ▪AE502XX(MAH) at MEA-LHM-00001430-1435. Id. at MEA-LHM-00001431. 569 Id. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 170 of 1205

233. UNCLASSIFIED//FOR PUBLIC RELEASE Finally, the 10 January Memorandum stated that the LHM interviews would be documented on CIA-supplied laptops. If a detainee reported previous torture at the CIA black sites, "even though coming from a detainee," that information was "deemed by the CIA to be national security information." 572 Therefore, FBI agents were instructed to create separate memoranda to document those allegations of torture, rather than including them in the same LHM memoranda created to document detainee answers to the case-related questions. The torture information, therefore, would be siloed away from detainee answers that would be used to prosecute them. 572 29 Id. at MEA-LHM-00001433. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 171 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE פייר 235. ▪SA Perkins testified that she reviewed "printed documents" from the CIA, 577 At least one other interrogator requested and was given access to the CIA file on Mr. al Baluchi and reviewed at the Office of the Chief Prosecutor. 577 7T. 12/7/17 at 17561. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 172 of 1205

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Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Mr. al Baluchi appeared to agree wholeheartedly with everything he was "told" by the agents, and seemed eager to offer corroborating information for each of the above statements they made to him UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 176 of 1205

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Filed with TJ 15 May 2019 244. UNCLASSIFIED//FOR PUBLIC RELEASE In 2014, upon release of the SSCI Executive Summary, the Republican minority members of the SSCI released their own "Minority Views," in which they provided their own analysis of the RDI program UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 178 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE In judging what caused [Mr. Husayn] to give up valuable intelligence. it is impossible to separate or disaggregate enhanced interrogation techniques from rapport-building techniques after enhanced techniques are applied. Enhanced interrogation techniques are designed to compel detainees to cooperate with questioning and are used in conjunction with traditional questioning methods or interrogation techniques. 589 589 SSCI Minority Views at 36. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 179 of 1205

Filed with TJ 15 May 2019 247. UNCLASSIFIED//FOR PUBLIC RELEASE ▪Through the present day, Mr. al Baluchi lives in a black site (Camp 7) and attends attorney-client meetings in a black site (Echo 2). UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 180 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE 6. Argument: 591 Courts The military commission should suppress all of Mr. al Baluchi's statements. reviewing statements for admissibility have not reviewed facts involving long-term incommunicado detention, physical coercion, or severe psychological pressure by American agencies for many years, since the Jim Crow era and the suppression of the civil rights movement. The facts of these cases, brutal as they are, seem almost humane in comparison to the facts before the military commission. U.S. treatment of Mr. al Baluchi in many ways defies legal analysis, because it did not occur in a regime governed by law, but by raw power. It was, by definition and design, lawless. The central goal of the interagency effort against Mr. al Baluchi and other prisoners was to use violence to create a psychological condition in which the prisoners would provide information without the use of further violence by interrogators. CIA called this process "learned helplessness"; torture program architect Dr. James Mitchell called it "Pavlovian classical 19592 conditioning." Both phrases describe a psychological state in which the will of the prisoner is permanently replaced by that of the questioners. 592 James E. Mitchell & Bill Harlow, Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America 46 (2016). Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 181 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE Dr. Mitchell believes "that only two EITs were required for the conditioning process: walling and sleep deprivation."593 Interrogators could, and did, break human beings quickly: "by seventy-two hours detainees usually were starting to look for ways to cooperate, and thanks to the conditioning process, [interrogators] rarely had to use walling when a detainee drifted back into "594 being duplicitous." This seventy-two hour benchmark appears to apply Mr. al Baluchi; the SSCI Executive Summary states that Mr. al Baluchi underwent "EITS" between 17-20 May 2003.59 Walling and sleep deprivation, in conjunction with ice-water-drowning in a tarpaulin. starvation, forced nudity and sexual humiliation, hanging from the ceiling, being chained to the floor, and isolation from human contact other than his captors for years, broke Mr. al Baluchi- psychologically and neurologically. Walling and other torments damaged Mr. al Baluchi's brain, For a short time, they literally drove him insane, 598 calling into question how Mr. al Baluchi can ever know which of his memories are actually his own. 593. 594 595 Mitchell & Harlow at 235. Id. at 201. SSCI Executive Summary at 388. Mr. al Baluchi has no actual timeline of what was done to Mr. al Baluchi and when. Mr. al Baluchi cannot acquire such a timeline because (1) the government refuses to produce the actual information; and (2) PO#4 prohibits Mr. al Baluchi from acquiring it through his own investigation. 596 597 598 Attachment J. See, e.g., Attachment I; AE200MM, Att. E. Attachment D at MEA-10018-00005985-86. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 182 of 1205

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UNCLASSIFIED//FOR PUBLIC RELEASE (1) Mr. al Baluchi's alleged January 2007 statements were obtained by the use of torture or cruel, inhuman, or degrading treatment within the meaning of 10 U.S.C. § 948r(a) and the Due Process Clause. The suppression standard in 10 U.S.C. § 948r(a), while technically more demanding than voluntariness, is the best description of the evidence before the military commission: "obtained by the use of torture or cruel, inhuman, or degrading treatment." This standard is not limited to individual acts or statements, but provides an apt summary of the entire interagency project of extrajudicial kidnapping, incommunicado detention, physical and mental abuse, secrecy, and lies which provide the basis for this prosecution. "In the criminal context, confessions or testimony procured by torture are excluded under the Due Process Clause because such admissions would run contrary to 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. 614 The military commission should suppress all statements Mr. al Baluchi allegedly has made to agents of the United States. Title 10 U.S.C. § 948r(a) provides in relevant part:615 614 Mohammed v. Obama, 704 F. Supp. 2d 1, 24 (D.D.C. 2009) (quoting Brown, 297 U.S. at 286). 615 MCRE 304(a)(1) contains the same language. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 185 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE Exclusion of statements obtain[ed] by torture or cruel, inhuman, or degrading treatment.-No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. § 2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter. ▪MCRE 304(b)(3) draws its definition of torture from 18 U.S.C. § 2340, which in turn draws on the United Nations Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment: 616 "an act specifically intended to inflict severe physical or mental pain or suffering 617 (other than pain or suffering incident to lawful sanctions) upon another person within the actor's custody or physical control." The leading case in the D.C. Circuit on the meaning of torture is Price v. Socialist People's Libyan Arab Jamahiriya. 618 Under Price, the definition of torture involves two main 616 18 U.S.C. § 2340, along with §§ 2340A-B, implements the United States Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc A/39/51 (1984) [hereinafter CAT], in the context of the United States' Reservations, Understandings, and Declarations. Congress added § 2340 in the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Pub. L. 103-236, 108 Stat. 464 (1994). Title V, Section 506, which included § 2340, was titled "Torture Convention Implementation," and was contingent on the United States becoming a party to CAT. 617 ■"Severe mental pain or suffering' is defined as the prolonged mental harm caused by or resulting from: (A) the intentional inflict or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality." MCRE 304(b)(3). 618 294 F.3d 82 (D.C. Cir. 2002). Price arose in the context of the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602-11 [hereinafter FSIA], which allows suits against foreign states or their agents for torture. See 18 U.S.C. § 1605(e) (before 2008), § 1605A (after 2008). The FSIA draws its definition of torture from the Torture Victim Protection Act, 28 U.S.C. § 1350 Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 186 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE elements: severity and purpose. "620 police brutality." 619 These elements serve to distinguish true torture from “mere The first inquiry is severity. The D.C. Circuit explained, "The critical issue is "621 the degree of pain and suffering that the alleged torturer intended to, and actually did, inflict upon the victim. The more intense, lasting, or heinous the agony, the more likely it is to be torture." The court gave "sustained systematic beating" and "tying up or hanging in positions that cause extreme pain" as examples of "extreme, deliberate and unusually cruel practices" that meet the severity requirement of torture. 622 It is permissible to infer the intent to cause pain from the facts of the abuse. 623 Courts have characterized treatment milder than that at issue here as torture. 624 (note) [hereinafter TVPA]. TVPA, like § 2340, draws its definition from CAT. See Price, 294 F.3d at 92. 619 Price, 294 F.3d at 92; Warmbier v. Democratic People's Republic of Korea, 356 F. Supp. 3d 30, 46 (D.D.C. 2018) ("To establish torture, the plaintiffs must show that the conduct was sufficiently severe and purposeful."). 620 Price, 294 F.3d at 93. 621 Id. 622 Id. at 92-93 (quoting S. Exec. Rep. No. 101-30, at 14 (1990)); see also Fritz v. Islamic Republic of Iran, 320 F. Supp. 3d 48, 80 (D.D.C. 2018) ("And, on the other extreme, we know, for example, that 'sustained systematic beating. and tying up or hanging in positions that cause extreme pain' clearly cross the line." (quoting Price, 294 F.3d at 93)). 623 Fritz, 320 F. Supp. 3d at 82. 624 See, e.g., Allan v. Islamic Republic of Iran, 2019 U.S. Dist. LEXIS 49541 (D.D.C. Mar. 25, 2019) (describing punches, kicks, sexually assaults, slaps, stress positions, refusal of access to food and water, denial lavatories, mock executions, threats, and imprisonment in apartments, garages, and basement prisons as torture). Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 187 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE Under D.C. Circuit law, torture is generally not a single event, but rather a course of abusive treatment over time. Thus, "beatings, unsanitary conditions, inadequate food and medical care, and mock executions" over a period of eighteen months constitute torture.625 The second inquiry is purpose. Regardless of "its specific goal," conduct reaches the level of torture "only when the production of pain is purposive, and not merely haphazard. [An alleged torturer] must impose suffering cruelly and deliberately, rather than as the unforeseen or unavoidable incident of some legitimate end. "626 The D.C. Circuit, and indeed the TVPA itself, provide obtaining information as an example of purposeful behavior which supports a finding of torture. 627 Cruel, inhuman, and degrading treatment is the "cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments "628 "Conditions [of confinement] . . . alone or in combination, may deprive inmates of the minimal civilized measure of life's necessities. Such conditions could be cruel and unusual under the "629 Unsanitary living conditions, long-term isolation, contemporary standards of decency 625 Kilburn v. Islamic Republic of Iran, 699 F. Supp. 2d 136, 152 (D.D.C. 2010); see also Fritz, 320 F. Supp. 3d at 82; Regier v. Islamic Republic of Iran, 281 F. Supp. 2d 87, 91, 92, 97 (D.D.C. 2003); Cicippio v. Islamic Republic of Iran, 18 F. Supp. 2d 62, 65 (D.D.C. 1998). 626 Price, 294 F.3d at 94. 627 Id. at 92 (quoting TVPA § 3(b)(1)); see also Warmbier, 356 F. Supp. 2d at 47 (finding North Korean extraction of confession sufficient purpose to support allegation of torture). 628 MCRE 304(b)(4). 629 Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981). Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 188 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE limited diet, and denial of medical care are examples of Fifth, Eighth, and Fourteenth Amendment violations which can constitute CIDT. 630 The psychological control established by the United States over Mr. al Baluchi was critical to the success of the January 2007 interrogations. "Torture and enhanced interrogation techniques' employed by the Government during the War on Terror have been shown to be 'geared toward creating anxiety or fear in the detainee while at the same time removing any form of control from the person to create a state of total helplessness." The "Pavlovian classical conditioning" Dr. Mitchell's torture program created did not dissipate with the transfer of Mr. al Baluchi from one CIA prison to another, but persisted well beyond January 2007. It continues to this day, 633 This program of forcing a prisoner to produce information through conditioning was 630 See, e.g., Rhodes, 452 U.S. at 347-48; Hutto v. Finney, 437 U.S. 678, 685 (1978); Estelle v. Gamble 429 ULS 97 103 (1976) 632 Mohammed, 704 F. Supp. 2d at 27 (quoting Metin Basuglu, Torture vs Other Cruel, Inhuman, and Degarding Treatment: Is the Distinction Real or Apparent? 64 Archives of Gen. Psychiatry 277, 283 (2007)). 633 Attachment I. Dr. is expected to testify at the evidentiary hearing. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 189 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE especially successful in Mr. al Baluchi's case because it included the neurophysiological element of concussion and brain damage. Prolonged and extreme stress, like that associated with CIA enhanced and standard interrogation techniques, has a deleterious effect on frontal lobe function. At the same time, Mr. al Baluchi suffered 634 Concussion Syndrome. 535 from untreated Post- 634 Mohammed, 704 F. Supp. 2d at 27 (quoting Shane O'Mara, Torturing the Brain: On the Folk Psychology and Folk Neurobiology Motivating Enhanced and Coercive Interrogation Techniques, Trends in Cognitive Sciences (2009)). Dr. O'Mara is expected to testify at the evidentiary hearing. 635 Attachment 1. s expected to testify at the evidentiary hearing. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 190 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE Walling and other forms of torture robbed Mr. al Baluchi of parts of his brain tissuc. This brain damage means that interrogating agents had the advantage not only of Mr. al Baluchi's learned and entirely rational fear of American interrogators, but also of induced inability to handle that fear or accurately remember the actual facts which underlie hundreds of previous interrogations Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 191 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE The constitutional rule is clear: Under the Fifth Amendment, otherwise "reliable and probative evidence" must be excluded "for all purposes" "when it is derived from involuntary statements."638 Even where the deterrence purpose of the exclusionary rule does not exist (such as with foreign interrogators), the poisonous fruit of coerced statements are inadmissible. 639 Neither the statements themselves, nor their fruits, are admissible in a judicial proceeding. Statutorily, 10 U.S.C. § 948r(c) provides in relevant part:640 Other statements of the accused.-A statement of the accused may be admitted into evidence in a military commission under this chapter only if the military judge finds- (1) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) that. (B) the statement was voluntarily given. (U) The test for whether a statement is voluntary "is whether the statement was a 'product 638 639 Michigan v. Harvey, 494 U.S. 344, 351 (1990). See United States v. Abu Ali, 395 F.3d 210, 227 (4th Cir. 2008) (holding that statements obtained from foreign defendants from foreign law enforcement agents outside of the United States are generally admissible if voluntary); United States v. Yousef, 327 F.3d 56, 145 (2nd Cir. 2003) (same); United States v. Karake, 443 F. Supp. 2d 8, 50 (D.D.C. 2006) (holding that conditions and mistreatment of defendant while under foreign interrogation shocked the conscience, therefore statements involuntary and inadmissible in U.S. courts). 640 ▪MCRE 304(a)(2) contains the same language. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 192 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE of an essentially free and unconstrained choice by its maker. "641"The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession." 642 643 The techniques used to obtain statements are a critical focus of inquiry." "[T]he admissibility of a confession turns on as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant's will was in fact overborne."644 The analysis of voluntariness requires "careful evaluation of all the circumstances of the interrogation." >>645 These circumstances classically include but are "not limited to the defendant's age and education, the length of the detention, whether the defendant was advised of 27646 his rights, and the nature of the questioning." Other factors include "the defendant's prior 641 United States v. Murdock, 667 F.3d 1302, 1305 (D.C. Cir. 2012) (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). 642 Culombe, 367 U.S. at 602. 643 The military commission, of course, has prohibited Mr. al Baluchi from most independent investigation to determine the techniques used to obtain statements from Mr. al Baluchi, whether in Guantanamo or a different black site, when that information is held by a CIA employee or contractor. 644 Miller v. Fenton, 474 U.S. 104, 116 (1985) (citing Gallegos v. Colorado, 370 U.S. 49, 51 (1962) and Culombe, 367 U.S. at 605). 645 Mincey v. Arizona, 437 U.S. 385, 401 (1978). This very standard illustrates why the investigative prohibitions in PO #4 prevent a meaningful testing of voluntariness through a motion to suppress. PO #4 prevents investigation into "all the circumstances of the interrogation" where those circumstances are known to CIA employees or contractors. 646 (1973)). Murdock, 667 F.3d at 1305-06 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 193 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE experience with the legal process[] and familiarity with the Miranda warnings."647 For all the reasons described above, including almost four years of isolation, denial of access to counsel or consul, ignorance of the legal system prosecuting him, conditioning to answer, and actual physiological changes to Mr. al Baluchi's brain structures, Mr. al Baluchi's answers to questions from the FBI-CITF interrogation team were not the result of free and unconstrained choice. "There is torture of mind as well as body; the will is as much affected by fear as by force."648 In addition, the January 2007 interrogation was clearly the fruit of the prior years of coercive interrogations. "Where a confession is obtained at a lawful interrogation that comes after an earlier interrogation in which a confession was obtained due to actual coercion, duress, or inducement, the subsequent confessions is presumptively tainted as a product of the earlier one." Title 10 U.S.C. § 948r(d) provides: 650 Determination of voluntariness.-In determining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge shall consider the totality of the circumstances, including, as appropriate, the following: (1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during hostilities; (2) The characteristics of the accused, such as military training, age, and education +649 647 Miller, 474 U.S. at 117. 648 Watts v. Indiana, 338 U.S. 49, 52 (1949). 649 United States v. Cuento, 60 M.J. 106, 108-09 (C.A.A.F. 2004); see also Al Rabiah v. United States, 658 F. Supp. 2d 11, 36 (D.D.C. 2009) (holding that government had not carried its burden to demonstrate a clean break between coercive and non-coercive interrogations). 650 UMCRE 304(a)(4) contains the same language. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 194 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE level; (3) 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. "This multi-factor inquiry aims to uncover whether there has been a 'break in the stream of events. sufficient to insulate the statement from the effect of all that went before.""651 In addition to these enumerated factors-derived from Oregon v. Elstad 652 "courts should examine, inter alia, the age, education, intelligence, and mental health of the witness; whether he has received advice regarding his Constitutional rights; the length of detention; the 'repeated and prolonged nature of the questioning'; and the use of physical punishment such as the deprivation of food or sleep." 55653 Additionally, courts should consider "the continuing effect of the prior coercive techniques on the voluntariness of any subsequent confession."654 "The effect of earlier abuse may be so clear as to forbid any other inference than that it dominated the mind of the accused to such an extent that the later confession is involuntary." 5655 Aside from the tactics employed by the interrogators themselves, conditions of confinement-such as isolation or inhuman living conditions-directly affect the voluntariness of 651 Mohammed, 704 F. Supp. 2d at 25 (quoting Clewis v. State of Texas, 386 U.S. 707, 710 (1967)). 652 470 U.S. 298, 310 (1985). 653 Mohammed, 704 F. Supp. 2d at 25 (quoting Schneckloth, 412 U.S. at 226). 654 Karake, 443 F. Supp. 2d at 87. 655 Lyons v. Oklahoma, 322 U.S. 596, 603 (1944). Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 195 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE statements. In Brooks v. Florida, for example, the Supreme Court held that a confession was involuntary where it was extracted after two weeks of incommunicado detention in which the accused was "completely under the control and dominion of his jailers." 55656 This interrogation followed an extensive period of incommunicado detention and abuse. Factors such as "the length of the abuse, its severity, and the fact that it was targeted to overwhelm the [prisoner] mentally as well as physically" weigh against a finding of attenuation. 15657 The length, severity, and purpose of the abuse are especially important here because of the effect on Mr. al Baluchi. On this occasion, the conduct of intelligence operations is a factor counseling exclusion. Evaluation of Mr. al Baluchi's individual circumstances must take into account "the 656 389 U.S. 413, 414 (1967). 657 Mohammed, 704 F. Supp. 2d at 26. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 196 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE psychological effects of this lengthy and inhumane treatment. "659 Mr. al Baluchi's torture-induced is onc factor which cuts against a finding of attenuation. 660 addition to years of conditioning for interrogation compliance In Mr. al Baluchi had no prior acquaintance with an legal system, much less the American legal system. He knew only a lawless system of secret prisons, denial of access to counsel, and torture. The RDI Program was in many ways an anti-legal system, designed to remove Mr. al Baluchi from constitutional and human rights protections. The simple passage of time does nothing to suggest attenuation, especially when the time was spent nearly incommunicado in a CIA-controlled prison. "When considering the amount of time which has elapsed between the coerced confession and the subsequent one, courts have never insisted that a specific amount of time must pass before the taint of earlier mistreatment has dissipated. Indeed, as a legal matter, it has been held that the effects of earlier coercion could last for nearly one year." "661 "A totality of the circumstances inquiry, therefore, cannot be reduced simply to mechanical computations of time." "662 Finally, the change in individual questioners means little in this context. Over his years in CIA custody, over 150 individuals interrogated Mr. al Baluchi. These three were simply the latest in a long string of questioners. As in the case of Binyam Mohammed, "even though the identity of the individual interrogators changed (from nameless Pakistanis,. 659. Mohammed, 704 F. Supp. 2d at 27. 660 Id. at 27. 661 Id. at 26 (citing Al-Rabiah classified opinion). 662 Id. at 26 (citing Schneckloth, 412 U.S. at 226). Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 197 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE In Suhail Abdu Anam v. Obama, the U.S. District Court for the District of Columbia applied the above factors to determine that statements made by an Accused to United States officials at Guantanamo Bay were tainted by prior maltreatment by different United States forces in Afghanistan, 664 The court inferred that the interrogators at Guantanamo had access to the Accused's coerced confessions overseas. "Far from being insulated from his coerced confessions, his Guantanamo confessions were thus derived from them." The court also found that the Accused's post-traumatic stress disorder “seemingly exacerbated the taint from any harsh treatment."665 Although the military commission should exclude the statements under § 948r(a), it is also true the Mr. al Baluchi's alleged statements were involuntary. Either way, the military commission should exclude them for all purposes. (3)The statements are not "reliable and possessing sufficient probative value" within the meaning of 10 U.S.C. § 948r(c)(1). Finally, the military commission should also exclude Mr. al Baluchi's alleged statements because they are unreliable. Like the Due Process Clause, Section 948r(c)(1) prohibits the admissibility of statements that are not "reliable and possessing sufficient probative value."666 664 696 F. Supp. 2d 1, 7 (D.D.C. 2010). Id. at 8. 665 666 10 U.S.C. § 948r(c)(1). Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 198 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE Coercion in itself diminishes the reliability of statements. "[A]s a practical matter, **667 resort to coercive tactics by an interrogator renders the information less likely to be true." The District of D.C. concluded in the case of Binyam Mohammed that, "throughout his detention, a constant barrage of physical and psychological abuse was employed in order to manipulate him and program him into telling investigators what they wanted to hear. Because of provoked by chronic extreme stress, Mr. al Baluchi and 670 others like him are prone to confabulation, or the production of false memories. It can be "difficult or perhaps impossible to determine during interrogation whether the information that a suspect reveals is true: information presented by the captor to elicit responses during interrogation might inadvertently become part of the [subject's] memory, especially because [subjects] are under extreme stress and are required to tell and retell the same events that might have happened over a period of years."571 667 ▪Mohammed, 704 F. Supp. at 24-25 (citing Linkletter v. Walker, 381 U.S. 618, 638 (1965)). 670. Mohammed, 704 F. Supp. 2d at 27. 671 Id. at 28 (quoting O'Mara). Dr. O'Mara is expected to testify at the evidentiary hearing. Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 199 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE America does not have a system of government which tolerates conviction and execution on the basis of evidence acquired by a program of torture and interrogation conducted outside the realm of law. On a spectrum of interrogation abuses, this case lies at the end far from civilized behavior consistent with a democratic state. If these statements were admissible, the most fundamental constitutional and statutory protections would have ceased to function. The military commission should vindicate these basic principles and suppress the statements at issue here. 7. Request for witnesses: As directed in AE524LLL, Mr. al Baluchi will make a separate request for witnesses to the government. 8. Certificate of conference: The government initially stated its position as follows: "The Prosecution will oppose Mr. [al Baluchi's] motion to suppress statements made to law enforcement in January 2007. As the Prosecution does not intend to introduce any statement taken from Mr. [al Baluchi] while he was in the custody of the United States and in the RDI Program from 2003 to September 2006, the Prosecution opposes Mr. [al Baluchi]'s motion to suppress any such statements on ripeness and/or mootness grounds." Upon request for clarification, the government stated as follows: "The Prosecution will defer stating its position on any statements Filed with TJ 15 May 2019 UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 200 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE taken prior to the time Mr. [al Baluchil was in the custody of the United States until the Prosecution has an opportunity to read your motion and assess its merits." 9.Attachments: A. Certificate of Service B. 2A Chronologies of Defendants' Black Site Detention C. MEA-DR-034-MOH-00001, Linking of Locations and Identities in SSCI EXSUM With Corresponding Identifiers Produced in Discovery. D. Medical Records (MEA-10018-00002967). E. Additional JDM Filed with TJ 15 May 2019 G. Additional STA H. CP7 Documents I. Dr. Report K. Echo 2 photographs L. AE214A Discovery M. XYM Discovery N. MEA-13E-00000572 0. Assessment of Current Status P. Letter from John Yoo UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 201 of 1205

UNCLASSIFIED//FOR PUBLIC RELEASE (Very respectfully, //s// JAMES G. CONNELL, III Learned Counsel (Tilsil STERLING R. THOMAS Lt Col, USAF Defense Counsel //s// ALKA PRADHAN Defense Counsel //s/ MARK E. ANDREU Capt, USAF Defense Counsel Counsel for Mr. al Baluchi Filed with TJ 15 May 2019 BENJAMIN R. FARLEY Defense Counsel UNCLASSIFIED//FOR PUBLIC RELEASE Appellate Exhibit 628 (AAA) Page 202 of 1205