United States District Court, District of Columbia
CHRISTOPHER R. COOPER, UNITED STATES DISTRICT JUDGE.
Attack on the U.S. Special Mission Compound in Benghazi,
Libya ............................... 3
Khatallah's Personal Background
Preparation for Abu Khatallah's Arrest
Foreign Transfer of Custody Request
Engine Problems on the USS New York
Whether the Government Violated Abu Khatallah's Right to
Prompt Presentment ...... 26
Whether Abu Khatallah's Miranda Waivers Were
Undermined by a Two-Step Interrogation
Whether Abu Khatallah's Miranda Waivers Were
Otherwise Knowing and Voluntary
Whether Abu Khatallah Invoked His Right to Counsel
Whether Abu Khatallah's Custodial Statements Were
Voluntary ................................. 57
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.
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.
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
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
Attack on the U.S. Special Mission Compound in Benghazi,
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),
[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
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.
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
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.
Abu Khatallah's Personal Background
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.
Preparation for Abu Khatallah's Arrest
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
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).
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.”).
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.”).
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).
The Capture Operation
Agent “Johnson” 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. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Classified Insert 1.]
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.).
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, 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.).
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 ...