Case Coverage: Military Commissions

8/19 Motions Session #2: One of the Guys Who Questioned Al-Hawsawi

By Raffaela Wakeman, Wells Bennett
Monday, August 19, 2013, 10:35 AM

Ruiz rises in connection with his attempt to uncover precisely what FBI interviewers did---and did not---glean about Al-Hawsawi’s facility with English, during a three-day 2007 GTMO interrogation session. This bears on AE008, in that the defense has claimed that pre-referral shortcomings---including the lack of needed translation---were so pervasive as to violate the rights of the five accused. The government is of the view that, back in the “clean team” days of 2007, the accused spoke English well enough to be interviewed without a translator; Ruiz has suggested otherwise, based on prior written submissions and arguments at earlier sessions.

One of Al-Hawsawi’s interrogators, Special Agent James Fitzgerald, is sworn.  Fitzgerald is aware of, but hasn’t reviewed recently, an FBI legal policy document regarding the use of translators during investigations.  He likewise has heard of but not looked at FBI materials regarding cultural matters and rapport-building with interview subjects.  And Fitzgerald did not specifically look into Al-Hawsawi’s language capability prior to meeting with him.  The witness says nevertheless that, based on financial documents Fitzgerald had seen earlier, he thought, going into the discussion, that the accused would have at least some facility with English.  We also learn that two other individuals, one FBI and the other Army Criminal Investigation Command), accompanied Fitzgerald during the interview. Neither has Arabic language skills. Ditto Fitzgerald, though he knows a few Arabic words. When asked by Ruiz, Fitzgerald answers that indeed there was a standby Arabic translator available at GTMO---though this person was not summoned, apparently.

The witness assumes that Al-Hawsawi’s first language is not English; he so gleaned from the accused’s accented English.  But it was not FBI policy, Fitzgerald says, to audio or video record the interrogation; the witness documented it with his own written notes, and Special Agent Perkins, one of Fitzgerald’s FBI colleagues, took the lead in questioning.  Speaking English throughout, the interrogators admonished Al-Hawsawi of his rights, based on the prevailing law---the latter meaning that, in fact, Fitzgerald and crew did not Mirandize the accused, but told him that the interview was voluntary in nature.  The FBI crew then added that Al-Hawsawi was now in DoD custody, and that he would not be returned to the custody of Any Other Agency That Might Have Earlier Detained Him. But that was the sum and substance of the legal discussion among detainee and questioners. Al-Hawsawi’s demeanor was friendly, Fitzgerald recalls; their conversation during the interview was normal. The witness formed his view of Al-Hawsawi’s English proficiency, based on his questions and Al-Hawsawi’s seemingly logical answers.  The accused, moreover, didn’t ask for a translator.  Ruiz returns to his seat. Judge Pohl checks with the other defense counsel, who have no additional questions for the witness.

Trial counsel Ed Ryan does have a question or three.  The prosecutor reviews Fitzgerald’s past work as an FBI agent, and as a Massachusetts state trooper---both of which obligated him to speak to people, and in the course of the conversation, to form a judgment about English language proficiency.  Fitzgerald also worked in New York, a multicultural environment if ever there was one.  Sometimes, he answers Ryan, Fitzgerald’s opinion would lead him to cancel an interview and seek translation help.   Ryan notes that Al-Hawsawi’s interrogation session proceeded in parallel with others in the 9/11 case.  The questions were open-ended, Fitzgerald says, and based upon documents---financial documents, passenger manifests, and so forth, the majority of them written in English---which were presented to the accused.  One question was whether Al-Hawsawi felt comfortable talking to Fitzgerald and his group, and whether he needed a translator; the answers, were “yes” and “no,” says the witness.  Al-Hawsawi further told them he took English in school, and even passed an English achievement exam in high school or college.  Al-Hawsawi also said he used English while traveling and “with business,” as he put it, in the United Arab Emirates.  The agents finally would double-check, throughout the multi-day session, whether Al-Hawsawi had understood what the interrogators had said---and it appeared to the witness that he did.  Fitzgerald was confident that Al-Hawsawi comprehended.  Certainly, he never said he had a problem understanding the FBI groups’ questions.   Ryan concludes.

The baton passes to CDR Ruiz---who won’t ask any further questions.  We’ll pause for a brief recess, and then turn to our second and final witness regarding Al-Hawsawi’s historical language chops.

But before the gavel drops, KSM David Nevin asks that the court rejigger the day’s sequence a bit---chiefly that Judge Pohl turn first to AE018, and the rules for written communications order, followed by AE032, related to access to the security of the defense team’s email and technology.  Naturally enough, Nevin wants to put communications protocols to bed first and foremost, so that he might better interface with with his client.  The burdens on communications, he argues, are serious.  (The Abaya-ed Cheryl Bormann echoes Nevin, citing ongoing technical problems with email and computer servers.  Ditto J. Connell III, Al-Baluchi’s lawyer, who has been unable to file electronically and thus must file pleadings in hard copy.) The Chief Prosecutor urges, unsurprisingly, that the proceedings continue as originally planned.

That last colloquy yields no definitive resolution from the bench.  We’re in recess, at any rate.