The New York Times - 30.07.2019

THE NEW YORK TIMES NATIONALTUESDAY, JULY 30, 2019 0 N A

The 45th PresidentThe Agenda

GUANTÁNAMO BAY, Cuba —
By the time the C.I.A. delivered
Khalid Shaikh Mohammed to the
military prison at Guantánamo
Bay in 2006, it had already ex-
tracted confessions from him
through interrogations that in-
cluded waterboarding, rectal
abuse, sleep deprivation and
other forms of torture.
But none of what Mr. Moham-
med said during his three and a
half years in secret C.I.A. prisons
could be used in the military com-
mission trial he would face on
charges that he was the architect
of the Sept. 11, 2001, terrorist at-
tacks. So within months of his ar-
rival at Guantánamo Bay, the
Bush administration had F.B.I.
agents question him and other
Qaeda suspects to obtain fresh,
ostensibly lawful confessions.
Prosecutors called the new inter-
rogators “clean teams.”
Now defense lawyers in the
Sept. 11 case — which has been
stuck in pretrial hearings since
2012 and will not go to trial before
next year — are stepping up their
arguments that those teams were
not so clean after all.
They say that they have grow-
ing evidence that the F.B.I. played
some role in the interrogations
during the years when the sus-
pects were in the secret prisons by
feeding questions to the C.I.A.,
and that the C.I.A. kept a hand in
the case after the prisoners were
sent to Guantánamo. The result,
they contend, is a blurring of lines
that undercuts the assertion that
the confessions extracted after
torture could be legally separated
from those given by Mr. Moham-
med and his four alleged accom-
plices to the F.B.I. at Guantánamo.
The defense teams cite docu-
ments turned over to them under
court order showing that the F.B.I.

was involved in the case when the

prisoners were being held by the

C.I.A., from 2002 to 2006. Then, af-

ter President George W. Bush had

them transferred to United States

military custody at Guantánamo,

the C.I.A. continued to control or

influence the detention of Mr. Mo-

hammed and the other men, the

documents suggest.

The extent of the cooperation

between the agencies is a matter

of dispute, some of it carried out in

closed national security court

hearings. But the intermingling of

their work, defense lawyers say,

means that the statements the

suspects gave the F.B.I. should be

ruled inadmissible.

The intensifying battle over the

confessions, which prosecutors

say are critical to their case, is just

one way that the legacy of torture

continues to shadow the effort to

get justice for the 2,976 people

killed by the Sept. 11 hijackings.

And it highlights how the military

commission system has struggled

to decide complex legal disputes,

leaving the case unlikely to be de-

cided even by 2021, two decades

after the attacks.

“The clean teams were a fiction

from the very beginning,” said

Cheryl Bormann, the lawyer for

Walid bin Attash, a Saudi-born

man accused of serving as a depu-

ty to Mr. Mohammed in the hijack-

ing conspiracy. “There was no

separation. It’s all one big team.”

The first public information

about F.B.I. and C.I.A. collabora-

tion on interrogations involving

the five alleged Sept. 11 conspira-

tors emerged in a December 2017

pretrial hearing that challenged

whether one of the defendants,

Mustafa al Hawsawi, was subject

to trial by a military tribunal

rather than a federal court. Mr.

Hawsawi, a Saudi man who was

captured in Pakistan in March

2003 with Mr. Mohammed, is ac-

cused in the joint capital trial of

helping the hijackers with travel

and finances.

Abigail L. Perkins, a retired

F.B.I. special agent, said at the

hearing that she had reviewed

some of Mr. Hawsawi’s state-

ments to the C.I.A. before she in-

terrogated him in January 2007 as

a member of a clean team, four

months after his September 2006

transfer to Guantánamo.

She also said that while Mr.

Hawsawi was held incommunica-

do at the C.I.A. black sites, the

F.B.I. fed questions to C.I.A. inter-

rogators to ask their captives.

A partially redacted transcript

of a national security hearing held

last summer at Guantánamo also

shows that F.B.I. agents ques-

tioned Mr. Hawsawi during his

time at a C.I.A. black site but hid

their affiliation from him. At that

hearing, a prosecutor also dis-

closed that information the gov-

ernment had given defense law-

yers to prepare for trial commin-

gled F.B.I. and C.I.A. information

that came from the Rendition, De-

tention and Interrogation Pro-

gram, the formal name of the

black sites, leaving the impression

that it had all come from the C.I.A.

Prosecutors say the F.B.I.

agents who questioned the terror-

ism suspects at Guantánamo in

2007 did so independently of what

happened during the period when

the defendants were tortured.

Even though the United States

government “put together the as-

pects of law enforcement, intel

and military, for the purpose of

gaining information, and ulti-

mately obtaining a criminal case

against these men in military

commissions,” Ed Ryan, one of the

prosecutors, argued in court, the

work of the clean teams is “legally

defensible” because of the magni-

tude of the government investiga-

tion in the aftermath of the terror-

ist attacks.

Whether to accept the prosecu-

tion’s argument will be for the new

trial judge, Col. W. Shane Cohen of

the Air Force, to decide.

Last summer, the first trial

judge, Col. James L. Pohl, forbade

the use of the F.B.I. interrogations

at Guantánamo Bay, then retired

from the Army. Another prosecu-

tor on the case, Jeffrey D. Grohar-

ing, called the 2007 F.B.I. interro-

gations “the most critical evi-

dence in this case” and persuaded

an interim judge, Col. Keith A.

Parrella of the Marines, to re-

instate them.

Now the new judge, who took

over the case in June, plans to con-

sider again whether each of the

five defendants’ F.B.I. interroga-

tions should be admissible. Hear-

ings on the question could start in

September and run until March

2020.

First, however, the judge must

decide the delicate question of

how much testimony to take from

former black site workers, includ-

ing agents and contractors whose

identities the C.I.A. is shielding by

invoking a national security privi-

lege. The defendants want the

judge to hold an exhaustive hear-

ing on what went on in the C.I.A.

prison network between 2002 and

2006 as a basis for deciding

whether the clean-team state-

ments are admissible.

In June, James Harrington, a

lawyer representing one of Mr.

Mohammed’s co-defendants,

scolded Colonel Cohen at the

judge’s first hearing for referring

to the F.B.I. interrogations as

“cleansing” statements.

“Right now before the court I

believe is an issue of voluntari-

ness with respect to those state-

ments,” he said.

Mr. Harrington offered a long-

standing defense argument that

anything Mr. Mohammed and the

other suspects said at Guantá-

namo was essentially “a Pavlov-

ian response” drilled into the de-

fendants in their three and four

years of torture at the black sites,

where the lawyers contend that

calculated abuse trained the de-

fendants to later tell the F.B.I.

agents what the C.I.A. had forced

them to say.

That was the general defense

approach until December 2017,

when defense lawyers started

seeing both classified and unclas-

sified evidence they say demon-

strates that the United States gov-

ernment was engaged in “one con-

tinuous course of conduct to ob-

tain statements by torture and

other cruel and inhuman, degrad-

ing treatment, including incom-

municado detention,” according to

James G. Connell III, a lawyer

representing another defendant,

Mr. Mohammed’s nephew, Am-

mar al-Baluchi.

In 2017, for example, the law-

yers learned for the first time that

the C.I.A. had a role in how the

F.B.I. agents would conduct clean-

team interrogations.

The F.B.I. agents were required

to write up their interviews not on

a standard Federal Bureau of In-

vestigation 302 form, the stock in

trade of bureau record-keeping,

but as a letterhead memorandum

on a C.I.A. laptop. The agents

were instructed to segregate

claims of torture and other C.I.A.

mistreatment on a separate

memo, meaning they were absent

from the F.B.I.’s descriptions of

confessions by Mr. Mohammed

and the others at Guantánamo in

2007.

Notes from Mr. Hawsawi’s in-

terrogation helped reveal that he

had earlier been held incommuni-

cado at Guantánamo, when the

C.I.A. operated a black site at the

military base and hid its prisoners

from the International Committee

of the Red Cross, in 2003 and 2004.

“Our position is not that the

C.I.A. engaged in torture and

other cruel, inhuman and degrad-

ing treatment and then the F.B.I.

did something different,” said Mr.

Connell, who has drawn up a list of

112 pretrial witnesses to try to

prove his point. “Our position is

that the United States, as a whole,

had a plan, a scheme or a program

— however you want to describe it

— to obtain statements from Mr.

al-Baluchi by torture and other

cruel, inhuman and degrading

treatment.”

On Friday, lawyers for families

of people killed in the Sept. 11 at-

tacks, who are seeking testimony

from three of the alleged plotters,

reported to a federal judge in New

York that Mr. Mohammed has de-

clined to be deposed by them on

what he does or does not know

about Saudi Arabia’s role in the at-

tacks as long as his Guantánamo

trial is a capital case.

Lawyers Say Confessions That 9/11 Suspects Gave to F.B.I. Are Tainted

By CAROL ROSENBERG

Khalid Shaikh Mohammed, left, and Mustafa al Hawsawi are

awaiting trial by military commission at Guantánamo Bay, Cuba.

U.S. DISTRICT COURT, VIA ASSOCIATED PRESS

This article was produced in part-
nership with the Pulitzer Center on
Crisis Reporting.

WASHINGTON — Attorney
General William P. Barr moved on
Monday to end asylum protec-
tions for migrants solely because
their relatives have been perse-
cuted, the latest attempt by the
Trump administration to limit
sanctuary for people seeking ref-
uge in the United States.
Mr. Barr’s decision overturned
a 2018 judgment by the Justice De-
partment’s Board of Immigration
Appeals, which found that a Mexi-
can migrant whose father was tar-
geted by a drug cartel could be eli-
gible for asylum.
Migrants are eligible for asy-
lum in the United States if they
can prove they were persecuted
because of their race, religion, na-
tionality or what immigration
laws describe as “membership in
a particular social group or politi-
cal opinion.” Mr. Barr’s ruling con-
cluded that the immigration ap-
peals court “erred” in finding that
a migrant’s family qualified as a
persecuted social group.
“I conclude that an alien’s fam-
ily-based group will not constitute
a particular social group unless it
has been shown to be socially dis-
tinct in the eyes of its society, not
just those of its alleged persecu-
tor,” Mr. Barr concluded.
Federal law allows the attorney
general to overrule the decisions
of the immigration appeals board,
which is part of the Justice De-
partment. But like many of the
Trump administration’s recent at-
tempts to restrict migration to the
United States’ southwest border,
Mr. Barr’s ruling was expected to
be challenged in the wider court

system, immigration advocates

and lawyers said.

Last week, President Trump

announced a deal that requires

people who travel through Guate-

mala to first seek asylum there, in-

stead of in the United States. It is

expected to be challenged in both

the United States and Guatemala.

Earlier this month, the adminis-

tration enacted a rule to bar asy-

lum to any migrant who failed to

apply for protections in at least

one country on their way to the

southwest border. It was blocked

by a federal judge in San Fran-

cisco last week.

Mr. Barr has also tried to deter

migration by denying bail to thou-

sands of asylum seekers who are

being detained in the United

States while they wait for immi-

gration hearings.

Monday’s ruling stems from the

case of a Mexican migrant who il-

legally entered the United States

in 2011 to claim asylum. The mi-

grant said he was targeted by a

cartel in Mexico City because he

refused to sell drugs at his father’s

store.

He initially was denied the pro-

tections by an immigration judge

who ruled that the migrant was a

crime victim, but not eligible for

asylum. An immigration appeals

court, however, found that the mi-

grant established that he was a

member of a protected social

group since he was an immediate

family member to his father, who

was under threat.

Bradley Jenkins, the federal liti-

gation attorney for the Catholic

Legal Immigration Network who

represented the Mexican migrant,

said Mr. Barr’s reversal would af-

fect thousands of asylum cases at

the border.

Mr. Jenkins also noted an earli-

er decision by the United States

Court of Appeals for the Ninth Cir-

cuit, in San Francisco, that found

that a family was the “quintessen-

tial particular social group.”

“This really is the administra-

tion’s attempt to chill one of the

main bases for asylum in the

United States, just sort of by ad-

ministration fiat,” Mr. Jenkins

said. “This is a wide-ranging deci-

sion.”

Mr. Barr maintained that the

earlier decision cast too wide a net

on the eligibility for asylum.

“As almost every alien is a

member of a family of some kind,

categorically recognizing families

as particular social groups would

render virtually every alien a

member of a particular social

group,” Mr. Barr said.

Other advocates compared the

ruling to one last year by Jeff Ses-

sions, the attorney general at the

time, reversing an immigration

court ruling that granted asylum

to a Salvadoran woman abused by

her husband.

Department of Homeland Secu-

rity and Justice Department offi-

cials have said the measures are

necessary to deter migrants with-

out valid asylum claims from trav-

eling to the southwest border.

While migration to the border

declined in June, officials have

said facilities and resources are

being pushed beyond capacity by

a record number of Central Ameri-

can families seeking protection.

Lee Gelernt, the deputy direc-

tor of the American Civil Liberties

Union’s Immigrants’ Rights

Project, said Mr. Barr’s ruling

would specifically restrict mi-

grants from Central America.

“This is a continuation of an at-

tack on Central American asylum

seekers,” Mr. Gelernt said. “In

Central America, gangs will at-

tack one family member but

threaten another family member.”

Barr Moves to Block Asylum Claims Based on Persecution of Family Members

By ZOLAN KANNO-YOUNGS

Migrants waiting to apply for asylum at a crossing from Mexico this month. Officials have said facilities are beyond capacity.

CARLOS JASSO/REUTERS

wrote in a Slack post, according to
prosecutors, “dropping capital
ones dox and admitting it.”
Online, she used the name “er-
ratic,” investigators said, adding
that they verified her identity af-
ter she posted a photograph of an
invoice she had received from a
veterinarian caring for one of her
pets.
According to court papers and
Capital One, Ms. Thompson stole
140,000 Social Security numbers
and 80,000 bank account numbers
in the breach.
In addition to the tens of mil-
lions of credit card applications
stolen, the company said on Mon-
day, the breach compromised one
million Canadian social insurance
numbers — the equivalent of So-
cial Security numbers for Ameri-
cans.
The information came from
credit card applications that con-
sumers and small businesses had

submitted as early as 2005 and as

recently as 2019, according to Cap-

ital One, which is the nation’s

third-largest credit card issuer, ac-

cording to its website.

“Based on our analysis to date,”

the bank said in a statement, “we

believe it is unlikely that the infor-

mation was used for fraud or dis-

seminated by this individual.”

The bank also said it expected

that the breach would cost it up to

$150 million, including paying for

credit monitoring for affected

customers. Last week, the credit

bureau Equifax settled claims

from a 2017 data breach that ex-

posed sensitive information on

more than 147 million consumers,

costing it about $650 million.

Amazon Web Services hosts the

remote data servers that compa-

nies use to store their information,

but large enterprises like Capital

One build their own web applica-

tions on top of Amazon’s cloud

data so they can use the informa-

tion in ways specific to their

needs.

The F.B.I. agent who investi-

gated the breach said in court pa-

pers that Ms. Thompson had

gained access to the sensitive data

through a “misconfiguration” of a

firewall on a web application. That

allowed the hacker to communi-

cate with the server where Capital

One was storing its information

and, eventually, obtain customer

files.

Amazon said its customers fully

controlled the applications they

built, and Capitol One said in a

news release that it had “immedi-

ately fixed the configuration vul-

nerability” once it discovered the

problem. Amazon said it had

found no evidence that its under-

lying cloud services were compro-

mised.

On July 17, a tipster wrote to a

Capital One security hotline,

warning that some of the bank’s

data appeared to have been

“leaked,” the criminal complaint

said.

Once alerted to the breach, the

authorities found what they said

were Ms. Thompson’s online

boasts that she wanted to “distrib-

ute” the materials. On June 27, she

also listed “several companies,

government entities and educa-

tional institutions,” according to

court papers, which investigators

interpreted to be other hacks she

“may have committed.”

Other users in that channel, on

Slack, expressed alarm. One said

“don’t go to jail plz,” according to

the complaint.

On Monday, F.B.I. agents exe-

cuted a search warrant on Ms.

Thompson’s house. They seized

“numerous digital devices,” pros-

ecutors said, and found on them

“items that referenced Capital

One” and Amazon, which they re-

ferred to in the complaint only as

the “cloud computing company.”

“I am deeply sorry for what has

happened,” the bank’s chief exec-

utive, Richard D. Fairbank, said in

a statement. “I sincerely apolo-

gize for the understandable worry

this incident must be causing

those affected, and I am commit-

ted to making it right.”

Capital One said the bank ac-

count numbers were linked to

customers with “secured” credit

cards. Secured cards require

customers to put forth a sum of

money — $200 or $250 — in ex-

change for a card.

“It’s a way for banks to min-

imize the risk associated with

lending to folks who don’t have

perfect credit or who are just get-

ting started,” said Matt Schulz, an

analyst for Compare Cards. These

customers are vulnerable, he said,

and “often have very little finan-

cial margin for error.”

While the breach was possible

because of a security lapse by

Capital One, it was aided by Ms.

Thompson’s expertise. Informa-

tion posted on social media shows

she worked at one time for Ama-

zon, as an engineer for the same

server business that court papers

said Capital One was using.

Capital One is a longstanding

and prominent client of Amazon’s.

In a 2015 keynote at Amazon Web

Services’ main annual confer-

ence, a Capital One executive

gave a presentation on the compa-

ny’s efforts to move critical parts

of its technology to Amazon’s

cloud infrastructure so it could fo-

cus on building consumer applica-

tions and other needs.

Ms. Thompson will remain in

federal custody until a hearing on

Thursday, prosecutors said. Her

lawyer did not respond to an email

seeking comment.

Capital One has faced security

breaches before, and they are a

continual, costly, threat for the fi-

nancial industry. The chief of JP-

Morgan Chase, Jamie Dimon, has

said his bank spends almost $

million a year on security. Bank of

America’s chief has said in the

past that the bank has a “blank

check” for cybersecurity.

In a breach in 2017, Capital One

notified customers that a former

employee may have had access

for nearly four months to their

personal data, including account

numbers, telephone numbers,

transaction history and Social Se-

curity numbers. The company re-

ported a similar breach involving

an employee in 2014.

On Meetup, Ms. Thompson

posted enthusiastically about

hacking. “I’ve been meaning to

put together something like a

hack night or somethng soon,”

she wrote on May 13.

“It’s been a crazy past two

weeks, and my cat had to go to the

vet everyday last week but she’s

finally starting to recover maybe

this wednesday in capitol hill? I’ll

do an all day thing at starbucks

until they close, I’e got nothing

better to do.”

Hacker Left Obvious Trail After Stealing Data of 100 Million From Capital One

From Page A

Tiffany Hsu, Stacy Cowley, Adam
Goldman and Ben Protess contrib-
uted reporting.