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United States v. Abu Khatallah

United States District Court, District of Columbia

August 16, 2017

AHMED SALIM FARAJ ABU KHATALLAH, also known as “Ahmed Abu Khatallah, ” also known as “Ahmed Mukatallah” also known as “Ahmed Bukatallah” also known as “Sheik, ”Defendant.



         Table of Contents

         I. Factual Findings .................................................................................................................. 3

         A. Attack on the U.S. Special Mission Compound in Benghazi, Libya ............................... 3

         B. Abu Khatallah's Personal Background .......................................................................... 4

         C. Preparation for Abu Khatallah's Arrest ......................................................................... 5

         D. The Capture Operation .................................................................................................. 8

         E. Intelligence Interrogations ........................................................................................... 14

         F. FBI Interrogations ....................................................................................................... 14

         G. Foreign Transfer of Custody Request .......................................................................... 21

         H. Engine Problems on the USS New York ....................................................................... 23

         I. Procedural Background ............................................................................................... 25

         II. Discussion .......................................................................................................................... 26

         A. Whether the Government Violated Abu Khatallah's Right to Prompt Presentment ...... 26

         B. Whether Abu Khatallah's Miranda Waivers Were Undermined by a Two-Step Interrogation ............................................................................................ 41

         C. Whether Abu Khatallah's Miranda Waivers Were Otherwise Knowing and Voluntary ........................................................................................... 51

         D. Whether Abu Khatallah Invoked His Right to Counsel ................................................ 55

         E. Whether Abu Khatallah's Custodial Statements Were Voluntary ................................. 57

         III. Conclusion ........................................................................................................................ 58

         The United States has charged Ahmed Salim Faraj Abu Khatallah with the murder of the former United States Ambassador to Libya, J. Christopher Stevens, and three other U.S. government employees, along with related crimes stemming from the 2012 attack on a U.S. diplomatic compound in Benghazi, Libya. Nearly two years after the attack, U.S. special forces launched an operation to capture Abu Khatallah on the outskirts of Benghazi. The operation was a success. Abu Khatallah was brought on board a U.S. naval warship positioned off the Libyan coast, which then transported him to the United States approximately 5, 000 miles away.

         Abu Khatallah was repeatedly interrogated over the course of this thirteen-day journey. First, U.S. intelligence agents questioned him for several days mainly to gather information concerning his knowledge of potential terrorist activity in Libya and the surrounding region. FBI agents later boarded the ship, obtained verbal and written waivers of Abu Khatallah's Miranda rights, and conducted a series of interrogations focused on the attack.

         Abu Khatallah now moves to suppress the Mirandized statements he gave to the FBI. The grounds for the motion are: (1) that his nearly two-week journey across the Atlantic Ocean by boat violated his right to prompt presentment before a magistrate under Federal Rule of Criminal Procedure 5(a); (2) that the Government's two-step interrogation process undermined the voluntariness of his Miranda waiver; (3) that his Miranda rights were otherwise not voluntarily and knowingly waived; (4) that he invoked his right to counsel; and (5) that his statements were not voluntarily given.

         The Court held an eight-day evidentiary hearing at which it received testimony from Justice Department and State Department officials involved in the planning of the capture operation; several members of the capture team; intelligence and FBI agents who conducted the interrogations and their Arabic-language interpreters; the captain of the Navy ship that brought Abu Khatallah to the United States, the USS New York, and two of its crew members; and a defense expert who opined on the psychological effects of torture. Based on that testimony and the entire evidentiary record, and for the reasons that follow, the Court will deny Abu Khatallah's motion.

         I. Factual Findings

         A. Attack on the U.S. Special Mission Compound in Benghazi, Libya

         During the civil war that erupted in Libya in early 2011, the rebel group seeking to overthrow Muammar Gaddafi, the Transitional National Council (“TNC”), established its base of operations in the city of Benghazi. On February 25, 2011, the U.S. Department of State evacuated American personnel from Libya and suspended its operations at the U.S. Embassy in Tripoli. Less than two months later, the State Department reestablished its presence in the country with the arrival in Benghazi of U.S. Special Envoy J. Christopher Stevens. According to the State Department's official report on the Benghazi attack, on June 21, 2011, Stevens moved into what would become a U.S. Special Mission compound. See Accountability Review Bd., U.S. Dep't of State, Benghazi Attack Report 14 (Unclassified) (2012), documents/organization/202446.pdf [hereinafter “State Dep't Report”]. The compound was eventually comprised of “a diplomatic outpost, known as the U.S. Special Mission, ” where a contingent of State Department personnel worked, and a second facility, known as the “Annex, ” where a group of U.S. intelligence personnel was based. Indictment ¶¶ 5-6.

         The United States officially recognized the TNC as Libya's governing authority the following month, on July 15, 2011, and Gaddafi was ousted from power only a few weeks later. The U.S. Embassy in Tripoli reopened with a temporary-duty staff in September 2011. Stevens continued as Special Envoy to the TNC in Benghazi until he left the country on November 17, 2011. The Special Envoy position was not filled after Stevens's departure, but he returned to Libya as Ambassador in May 2012, operating out of the U.S. Embassy in Tripoli. According to the State Department Report, “2012 saw an overall deterioration of the security environment in Benghazi, as highlighted by a series of security incidents involving the Special Mission, international organizations, non-governmental organizations . . ., and third-country nationals and diplomats.” Id. at 15; see also id. at 15-16.

         Ambassador Stevens traveled to Benghazi to visit the Mission compound on September 10, 2012. Among others stationed at the compound and present during the Ambassador's visit were Information Management Officer Sean Patrick Smith, and Security Officers Tyrone Snowden Woods and Glen Anthony Doherty. See Indictment ¶ 16; State Dep't Report 18.

         The Mission and Annex were attacked on September 11 and 12, 2012. In two phases beginning on the evening of September 11 and lasting into the morning of September 12, armed intruders deployed small-arms and machine-gun fire, rocket-propelled grenades, and mortars at both facilities. See State Dep't Report 4. Buildings on the compound burned, and the fire spread to the Mission building housing Ambassador Stevens during his stay. Ambassador Stevens, Smith, Woods, and Doherty were killed in the attacks.

         B. Abu Khatallah's Personal Background

         U.S. authorities came to suspect that Ahmed Salim Faraj Abu Khatallah played a key role in the attack. On July 15, 2013, a criminal complaint and arrest warrant were issued for him, and, as noted above, he was captured in Benghazi the following summer. According to statements made by Abu Khatallah to law enforcement agents following his capture, he was born on May 7, 1971, so was 43 years old at the time of his arrest and interrogation. Hr'g Tr. 604:1-2 (May 12, 2017 a.m.) (Testimony of Agent Clarke). He received nine years of formal schooling, ultimately earning a certification as a car mechanic. Id. at 604:3-7. He worked briefly as a mechanic for the Libyan government, before moving to construction and later opening his own automobile repair shop in Benghazi. Id. at 604:9-13. Between 1995 and 2010, Abu Khatallah was arrested, released, and rearrested multiple times, largely due to his association with political opponents of the Gaddafi regime, and he spent most of this period in various Libyan prisons. Id. at 604-07. Abu Khatallah described the conditions in Tripoli's Abu Salim prison as being particularly harsh. The prison was “very crowded” with “no air circulation, ” and the temperatures were often extremely hot or cold due to a lack of heat and air conditioning. Id. at 605:15-19. Abu Khatallah told agents that he “was beaten for the first few days” of his imprisonment there, but “after that he was never tortured or interrogated.” Id. at 605:20-22. After his 2010 release from prison, Abu Khatallah returned to Benghazi, where he joined and ultimately led a revolutionary militia group aimed at overthrowing the Gaddafi regime. Id. at 607:4-12.

         C. Preparation for Abu Khatallah's Arrest

         The operation to capture Abu Khatallah followed nearly a year of planning across multiple U.S. government agencies. U.S. officials seriously considered two options in bringing Abu Khatallah to the United States after his capture: transport by aircraft, and transport by boat. The former option involved what is known as a foreign transfer-of-custody (“FTOC”) request: Abu Khatallah would be taken to a third country and then flown across the Atlantic Ocean. See Hr'g Tr. 1187:4-11 (May 17, 2017 a.m.). The latter required transporting Abu Khatallah aboard the USS New York, a San Antonio-class amphibious warship. See Hr'g Tr. 948:5-17 (May 15, 2017 a.m.) (Testimony of USS New York Captain Christopher Brunette).

         U.S. officials harbored serious doubts about the viability of the FTOC alternative for two reasons. First, the United States needed permission from a third country in order to conduct an FTOC, as it necessarily involved an intrusion upon the territorial sovereignty of another country. See Hr'g Tr. 1103:23-1104:9 (May 16, 2017 a.m.) (Testimony of Justin Siberell, Acting Coordinator for Counterterrorism, U.S. Department of State). Given the site of the arrest, the State Department could have requested permission from countries in Europe, North Africa, and the Middle East. See Gov't Ex. 402. Officials were skeptical, however, that European countries would agree to such a request given the potential application of the death penalty to Abu Khatallah. See Hr'g Tr. 1105:17-25 (May 16, 2017 a.m.) (Testimony of Justin Siberell). Countries in North Africa and the Middle East were also doubtful participants given the potential domestic backlash they could face from cooperating with the United States on an anti-terrorism operation. See id. at 1106:18-22. And State Department officials were averse to making a request that was likely to be denied given the possible diplomatic ramifications. As Mr. Siberell put it, “When we make a request of a government, we do not want to put that government in the position of saying no to us on a very difficult issue. That may have some costs more broadly in the relationship.” Id. at 1116:11-22; see also, e.g., Gov't Ex. 335 (E-mail from Redacted Sender to Justin Siberell on June 17, 2014) (“As you and I discussed, there are costs to making requests and I'd prefer not to throw a bunch of spaghetti against the wall.”). Given these concerns, the State Department believed that making an FTOC request would be “difficult” and “a hard one for [foreign] governments to accept.” Hr'g Tr. 1111:10-16 (May 16, 2017 a.m.) (Testimony of Justin Siberell).

         The second reason that U.S. officials doubted the viability of flying Abu Khatallah through a third country concerned the timing of the request. The relevant officials concluded they would not be able to make an FTOC request of another country until after Abu Khatallah had been captured. As one Justice Department official involved in the deliberations testified, contacting a third country with this request prior to the operation would have entailed “a high security risk.” Hr'g Tr. 851:21 (May 15, 2017 a.m.) (Testimony of Deputy Assistant Attorney General Bruce Swartz). An FBI official explained that a belated request was necessary because there was no guarantee that the third country would have kept the request confidential. Hr'g Tr. 1194:3-9 (May 17, 2017 a.m.) (Testimony of C. Bryan Paarmann, FBI Deputy Assistant Director for International Operations). The FBI was concerned that either the Libyan Government or various rebel groups inside Libya would learn of the operation beforehand, which “would significantly increase the risk to the mission and the possibility of failure of the operation.” Id. With any FTOC request on hold until after the operation began, the FBI focused much of its planning on transporting Khatallah across the Atlantic by ship. See Gov't Ex. 304 (E-mail from Redacted FBI Official to Redacted Recipient on Oct. 1, 2013) (“[The Department of Defense] has tasked [us] with developing [a plan] for transportation back to U.S. via opportune naval vessels. While everyone understands this is not the preferred [plan], it is the only one which the planners can start working on.”).

         The FBI nonetheless believed that “an FTOC out of a third country would have been the preferred and most likely course of action if [it] could [have been brought] to bear.” Hr'g Tr. 1202:4-7 (May 17, 2017 a.m.) (Testimony of Bryan Paarmann). It began laying the groundwork for this option in the fall of 2013, in conjunction with the planned apprehension of another terror suspect in Libya, Abu Anas al-Libi. See Gov't Ex. 303; Hr'g Tr. 1188:9-1189:7 (May 17, 2017 a.m.) (Testimony of Bryan Paarmann). The FBI developed an informal list of about a dozen countries that might help facilitate the FTOC, although even this informal list betrayed skepticism about the viability of this option. See Gov't Ex. 303 (E-mail from C. Bryan Paarmann to Justin Siberell on Oct. 7, 2013) (“Truly believe though that given the media surrounding [the Benghazi attack] that the list of countries being willing to help on this would be very small . . . . [I]f all say no . . . we are stuck with the Trans Atlantic boat movement option.”).

         The FBI ultimately planned for an operation that would allow for both transport options across the Atlantic. About five weeks prior to the operation, the FBI described the plan in internal e-mails as follows: The FBI would arrest Abu Khatallah in Libya and transfer him to a naval vessel in international waters. The vessel would then travel westward across the Mediterranean Sea for two to four days. During this time, intelligence agents would conduct non-Mirandized interrogations of Abu Khatallah as the State Department simultaneously contacted countries regarding the possibility of an FTOC request. FBI agents would then board the ship following the conclusion of the intelligence interrogations. If a third country agreed to an FTOC request, the ship would proceed to that country. If no country agreed, it would continue through the Mediterranean and across the Atlantic. See Gov't Ex. 302 (E-mail from Redacted FBI Employee to Redacted Recipient on May 7, 2014); Gov't Ex. 306 (E-mail from Redacted Sender to Redacted Recipient on June 13, 2014).

         D. The Capture Operation

         FBI Agent “Johnson”[1] described the planning and execution of Abu Khatallah's capture at the evidentiary hearing. An eight-member team began training for the operation in April 2014. Hr'g Tr. 21:11-20 (May 10, 2017 a.m.). The team, which included an FBI agent and a military translator trained as an Arabic linguist, departed the United States in early June. Id. at 34:13-16. On June 9, 2014, they flew by helicopter from a base in Southern Europe to the USS New York, as it was travelling eastward in the Mediterranean toward the Libyan coast. Id. at 22:3-7. After landing in Libya early in the morning on June 15, 2014, the team headed to a community of villas located on the coastline, just south of Benghazi. Id. at 26:4-20.[2] There, the team rehearsed the plan and made final preparations for the capture mission, which was scheduled to take place that night. Id. at 26:22-27:5. The mission was officially underway at 10:00 p.m. on June 15, 2016. Id. at 22:7-8. All team members were armed with pistols and dressed in civilian clothing that was intended to blend in with the environment. Id. at 28:2-29:5. In addition to their side arms, half the team carried backpacks containing assault-style weapons. Id. at 29:3-5. The team divided itself among the villa's four rooms and waited for Abu Khatallah to arrive. Id. at 29:11-15.

         The team planned for one of Abu Khatallah's acquaintances to lead him to the villa. When Abu Khatallah and his acquaintance entered the villa, they were immediately swarmed. Three members of the team, two from the bathroom and one from the kitchen of the villa, grabbed Abu Khatallah and threw him to the ground. Id. at 30:9-16; 69:15-18. Agent Johnson was in the bedroom and did not see Abu Khatallah enter, but entered the main area of the villa upon hearing the initial commotion. Id. at 30:23-31:15. Agent Johnson saw his colleagues on the floor with Abu Khatallah: two were trying to secure his arms and the third was attempting to control his head. Id. Seeing Abu Khatallah punching, biting, and kicking his captors, Agent Johnson grabbed both of Abu Khatallah's legs and held them to the ground. Id. at 31:17-22. At that point, Agent Johnson noticed a holstered pistol strapped to Abu Khatallah's left hip, which another team member promptly removed. Id. at 32:20-33:1. After struggling for three to four minutes, Abu Khatallah eventually tired and a team member was able to handcuff his hands behind his back. Id. at 33:14-17.

         The capture team then led a handcuffed-but mobile-Abu Khatallah into the bathroom, where Agent Johnson, through the Arabic linguist, identified himself as a member of the U.S. government. He told Abu Khatallah that he was in government custody and would be taken to the United States. Id. at 35:15-22. He also asked Abu Khatallah to identify himself, whether he was armed, and if anybody knew his current whereabouts. Id. at 37:4-14. Abu Khatallah responded by stating his name and confirming that he was not armed and that no one knew where he was. Id. The capture team had decided not to identify themselves to Abu Khatallah earlier because they felt this was the safest way to apprehend him. Id. at 34:18-35:14. In the bathroom with the lights on, Johnson observed a gash on Abu Khatallah's head and signs of bruising and swelling around his eyes, but he was unable to say precisely how Abu Khatallah had sustained those injuries. Id. at 39:2-5. No one on the capture team was injured. Id. at 66:12-13. A member of the capture team with medical training gave Abu Khatallah a cursory medical examination to make sure he was able to travel and not suffering from any significant injuries. Id. at 39:16-21. The entire apprehension-from Abu Khatallah's entrance into the villa until the conversation in the bathroom-lasted approximately eleven minutes. Id. at 40:11-15.

         Ten minutes later, after the team had cleaned the villa, it escorted Abu Khatallah about 500 meters to the shore, where a boat with another FBI agent on board was waiting. Id. at 44:3- 21. Abu Khatallah was in handcuffs, the front of his face was obscured by a blindfold, his ears were covered, and he was gagged. Id. at 41:2-5. Two team members guided him by the arms. Before boarding the vessel, the agents switched Abu Khatallah's handcuffs to the front and outfitted him with a life preserver so that he would be able to tread water in case he fell overboard. Id. at 45:7-17. At roughly 10:30 p.m., the boat departed the Libyan coast, and after ten minutes at sea, it pulled alongside a larger boat. Id. at 46:14-22. Abu Khatallah was lifted into the second vessel, which then proceeded toward the USS New York. Id. During the two-hour journey to the USS New York, Agent Johnson removed Abu Khatallah's gag because he was no longer within shouting distance of the shore, and a medic examined him. Id. at 46:23-47:7. The medic checked Abu Khatallah's vital signs and informed Agent Johnson that he was fit to continue. Id. at 49:11-24. Abu Khatallah reportedly repeated the phrase “God, why me” during the journey. Id. at 50:2-5. Upon arriving at the USS New York, the boat pulled alongside the ship's rear cargo door, and the medic placed a harness around himself and Abu Khatallah, and they were hoisted approximately ten to twelve feet to the ship's berth. Id. at 50:13-18; 51:5-14, 52:9. Agent Johnson entered the boat by jumping from the smaller vessel to a ladder attached to the ship. Id. He did not have any further contact with Abu Khatallah and left the USS New York five days later.

         The capture team's efforts were supported by a team on board the USS New York, who helped ready the ship for Abu Khatallah's arrival. Special Agent Robert Story, a supervisor in the FBI's counterterrorism division and a member of the support team, testified concerning Abu Khatallah's treatment and living conditions on the ship. Agent Story was tapped for the team in May 2014 and boarded the USS New York on June 9, 2014. Id. at 92:7-9; 94:18-19. While awaiting Abu Khatallah's capture, the team erected a detention facility in an open area within the ship's rear interior that consisted of four mobile pods in a row. Id. at 98:10-99:6; 101:13-19.

         The pods measured roughly 8 feet in length by 7 feet in width by 8 feet in height and were designated as either living quarters (pods “D1” and “D2”) or interrogation rooms (pods “I1” or “I2”). A larger, adjacent pod served as the latrine (“L”). Id. The pods were ventilated and screened off from the rest of the ship so that they could not be viewed from the sides or above. Id.; Gov't Ex. 405A-E. Abu Khatallah would live in pod D1 for the duration of the ship's journey. Id. at 106:17-22. An arrow on the wall of the pod pointed west towards Mecca and for the initial phase of his transit he was provided a blanket, a Quran, and a prayer rug. Id. at 106:11-14.[3]

         Agent Story was responsible for processing Abu Khatallah as soon as he boarded the USS New York. Id. at 111:8-10. Story, along with two Department of Defense (“DOD”) guards and with the assistance of an Arabic linguist, verbally instructed Abu Khatallah and physically guided him to the detention facility. Id. 113:8-13. Abu Khatallah's hearing restraint was removed but his handcuffs and blindfold remained in place, which would be the general protocol whenever he was moved between pods. Id. at 113:15-16. Abu Khatallah followed all instructions, and Agent Story described him as “compliant” and “very calm.” Id. at 114:22-24. Upon reaching the detention facility, Abu Khatallah was searched and taken to pod D2 for initial processing. Id. at 115-116.

         Once inside the processing pod, Abu Khatallah's blindfold, ear coverings, and handcuffs were removed. Hr'g Tr. 538:8-15 (May 12, 2017 a.m.). Staff Sergeant Dylan Lee Peterson-a member of the DOD guard force that provided security on board the ship-testified that he read Abu Khatallah the provisions of Article III of the Geneva Conventions, pausing throughout so that the interpreter could repeat the provisions in Arabic. Id. at 540:10-544:25. Abu Khatallah was told, for example, that he would be “treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria, ” and that U.S. personnel would not engage in “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.” Id.; see also Gov't Ex. 206. Written versions of those guarantees in both English and Arabic were also posted on the wall of the pod, where they remained for the duration of the trip. Hr'g Tr. 540:24-542:3, 551:5-7 (May 12, 2017 a.m.); see also Gov't Ex. 143B.

         Further processing included photographing Abu Khatallah in the clothes he arrived in and conducting a medical screening. Id. at 118; Gov't Exs. 106-08. The ship's physician, Dr. Brad Smith, performed an initial medical exam and treated Abu Khatallah throughout his journey on the USS New York. Hr'g Tr. 177:13-21 (May 10, 2017 p.m.) (Testimony of Dr. Smith); see Gov't Ex. 203 (Abu Khatallah's medical records). Dr. Smith characterized Abu Khatallah's head injury as a “subcutaneous laceration, ” and he closed the wound with three staples after applying local anaesthetic. Id. at 183:11, 188:4-21, 195:24, 197:16-20; see also Gov't Exs. 135-138 (photos of Abu Khatallah during the screening). He also examined Abu Khatallah's left hand, which showed signs of swelling and bruising around the fourth finger. Id. at 194:8-10. Dr. Smith took x-rays of Abu Khatallah's hand and jaw, which were negative. Id. at 195:9. At the end of the exam, Dr. Smith informed Abu Khatallah that he would be “seeing him again on a daily basis” and would remove the staples later. Id. at 199:15-20.

         The DOD guards were present throughout the initial processing and medical examination, and they attended to Abu Khatallah's general care and handling while on the ship. They gave him a set of rules, which included instructions to use one-word requests such as “water” and “bathroom, ” and directed him to “notify the staff” if he felt “abused.” Hr'g Tr. 553:19-554:12, 567:23-24 (May 12, 2017 a.m.). The guards kept a written log of all of Abu Khatallah's movements, including his visits to the latrine, the medical unit, and the interrogation pod. Hr'g Tr. 546:22-547:19 (May 12, 2017 a.m.); see also Gov't Ex. 204 (Def. Ex. 6). Each time Abu Khatallah was transported from one place on the ship to another, he was handcuffed, and his ears and eyes were covered. Hr'g Tr. 559-61 (May 12, 2017 a.m.). The logs also reflect brief checks on Abu Khatallah that occurred every two hours: The guards would peer through a window in the door of his cell “to make sure he was moving, awake, [and] alive.” Id. 557:13-17.

         E. Intelligence Interrogations

         [See Classified Insert 1.][4]

         F. FBI Interrogations

         The FBI interview team arrived on the USS New York on June 19, 2014, by helicopter. Hr'g Tr. 573:9-15 (May 12, 2017 a.m.). The team consisted of FBI case agents Michael Clarke and Justin O'Donnell, plus an interpreter or “language analyst, ” Mousa El-Chaer. Id. 574:22- 575:3; Hr'g Tr. 756-57 (May 12, 2017 p.m.). Agent Clarke had conducted “dozens and dozens of interviews in Libya” with the assistance of El-Chaer, who by that time had over five years of experience as an FBI interpreter. Hr'g Tr. 575:10-18 (May 12, 2017 a.m.); see Hr'g Tr. 756 (May 12, 2017 p.m.). O'Donnell also participated in those Libya interviews, and was proficient in Arabic. Hr'g Tr. 576:9-20 (May 12, 2017 a.m.); Hr'g Tr. 759:15-17 (May 12, 2017 p.m.). The FBI team, by design, had no contact with the intelligence team before, during, or after Abu Khatallah's capture and interrogation-and has had no contact to this day. Hr'g Tr. 573:20- 574:11 (May 12, 2017 a.m.); see also Hr'g Tr. 682:4-15, 747-48 (May 12, 2017 p.m.).

         For the FBI phase of the interrogation, Abu Khatallah was moved to new living quarters (the room marked “D2”), see Gov't Exs. 150A-J, and was questioned in a different interview room (“I1”), see Gov't Exs. 149A-J. There were no video or audio recording devices in the rooms. Hr'g Tr. 582:19-24 (May 12, 2017 a.m.). The rooms had identical dimensions to the intelligence-phase rooms, but were arranged differently. For example, in the interview room, the FBI team pasted green wallpaper and hung “decorative pictures” on the wall, and placed a green tablecloth and placemats on the table. Id. 579:18-25, 581:22-582:1; Hr'g Tr. 696:7-14, 702:24- 25 (May 12, 2017 p.m.). And to the living quarters, they added wallpaper, a prayer rug, a notepad, and a pencil. Id. at 701:14-17. Abu Khatallah was also given a change of clothing, [5]and his routine was slightly altered: He was able to shower once daily, and he started receiving three meals per day. Hr'g Tr. 583:5-12 (May 12, 2017 a.m.). He was not told, however, why any of these changes were made. Hr'g Tr. 700, 703 (May 12, 2017 p.m.).

         The FBI team first met with Abu Khatallah on June 21, 2014, beginning at 7:30 a.m. Hr'g Tr. 587 (May 12, 2017 a.m.). After the guards escorted Abu Khatallah to the interview room, he sat down at the table and the guards removed his blindfold, ear coverings, and hand restraints before leaving. Id. at 588-589. No members of the interview team were armed, and they were all dressed in casual, civilian clothes. Id. at 587:9-12, 588:8-10. Special Agent Clarke testified that when he first saw Abu Khatallah, he “appeared alert . . . well-rested and engaged with what was going on around him.” Id. at 588:21-22. Clarke also testified that Abu Khatallah was in better condition than he appeared in the photograph taken immediately after his capture, see Gov't Ex. 106. By the time of the FBI interview on June 21, Clarke observed, Abu Khatallah's “hair was washed, his eyes were more focused, and the discoloration, the bruising, on his face was consistent with five or so days of healing.” Hr'g Tr. 589:4-7 (May 12, 2017 a.m.). The agents began the ...

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