UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
MUSTAFA MUHAMMAD MUFTA AL- Case No. 17-cr-213 (CRC)
IMAM,
Defendant.
MEMORANDUM OPINION
On September 11 and 12, 2012, a group of Libyan militants attacked U.S. diplomatic and
intelligence facilities in Benghazi, Libya. Four Americans died in the attacks, including then-
United States Ambassador to Libya J. Christopher Stevens. Roughly two years after the attacks,
the United States captured in Libya one of the men the government believed was responsible for
the attacks, Ahmed Abu Khatallah, and brought him to trial in this Court. Then, in 2017, the
United States captured a man who they believed was one of Abu Khatallah’s co-conspirators,
Mustafa Mufta Al-Imam, the defendant in this case. Like Abu Khatallah before him, Al-Imam
was interrogated en route to the United States while aboard an American naval vessel. Also like
Abu Khatallah, he argues that the statements he offered during those interrogations were
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), which safeguards detainees’
Fifth Amendment right against self-incrimination.
Al-Imam thus moves to suppress those statements. He says that he gave his statements
while suffering from mental trauma induced by his recent abduction and seasickness, that he
lacked the wherewithal and familiarity with American legal norms to understand he did not have
to talk with his interrogators, and that he feared he would be beaten if he did not talk with them.
Those factors, Al-Imam suggests, render his two Miranda waivers both involuntary and
unknowing and require suppression of his statements.
The Court held an evidentiary hearing at which it received testimony from the personnel
involved in Al-Imam’s capture and transport; individuals responsible for his processing and
detention on the naval vessel where the interrogations took place; a doctor who several times
examined Al-Imam on board the vessel; one of the FBI agents who conducted the interrogations;
and the Arabic-language interpreter who facilitated all communications aboard the vessel. Based
on that testimony and the entire evidentiary record, and for the reasons that follow, the Court will
deny Al-Imam’s motion.
I. Factual Findings
A. Attack on the U.S. Special Mission Compound in Benghazi, Libya
Muammar Gaddafi seized power in Libya in 1969 and remained its leader until 2011,
when a civil war broke out. Indictment ¶ 2. The war originated in the Libyan coastal city of
Benghazi, which was controlled by rebels and served as the base of operations for the rebel-led
Transitional National Council (“TNC”). Id. 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. Id. ¶ 3. Less than two months later, in April 2011, the State Department reestablished
its presence in the country with the arrival in Benghazi of U.S. Special Envoy J. Christopher
Stevens. Id. ¶ 4.
On July 15, 2011, the United States officially recognized the TNC as Libya’s governing
authority. Id. One month later, Gaddafi was ousted from power and killed. Id. In November
2011, the United States established a diplomatic outpost in Benghazi, known as the U.S. Special
Mission (“Mission”), where a contingent of State Department personnel was stationed. Id. ¶ 5.
2
The United States established a second Benghazi facility, this one known as the Annex, where
additional U.S. personnel were based. Id. ¶ 6.
In May 2012, the United States dispatched Stevens, now the U.S. Ambassador to Libya,
to the Libyan capital of Tripoli. Id. ¶ 7. Ambassador Stevens traveled to Benghazi to visit the
Mission compound on September 10, 2012. Id. Stationed at the compound and present during
the Ambassador’s visit were Information Management Officer Sean Patrick Smith; Assistant
Regional Security Officers Scott Wickland and David Ubben; and Security Officers Tyrone
Snowden Woods, Glen Anthony Doherty, and Mark Geist. See id. ¶¶ 13-18.
Around 9:45 P.M. on September 11, 2012, approximately twenty men—armed with
assault rifles, handguns, and rocket-propelled grenade launchers—attacked the Mission. Id. ¶ 22.
After breaching the facility, the attackers set fire to several buildings, causing the deaths of
Ambassador Stevens and Sean Smith. Id. The remaining State Department personnel escaped to
the Annex, which soon also came under attack, ending in mortar fire that killed Tyrone Woods
and Glen Doherty. Id. The government believes that Al-Imam was a close associate of Abu
Khatallah, the leader of the extremist group that carried out the attacks. Id. ¶ 9. It alleges that
Al-Imam was present for, helped orchestrate, and participated in the attacks. Id. ¶¶ 9-11.
According to the indictment, Al-Imam entered the Mission at the direction of Abu Khatallah and
took sensitive material, including material that identified the Annex by location and as the
evacuation point for State Department personnel. Id. ¶ 22. The indictment also alleges that Al-
Imam then assembled with Abu Khatallah and others to coordinate the attack on the Annex. Id.
3
B. Al-Imam’s Capture and Initial Transport
FBI Special Agent Brandon Goad described Al-Imam’s capture at the evidentiary
hearing. On October 29, 2017, at about 9:15 P.M.,1 U.S. special forces abducted Al-Imam in
Misrata, Libya. Testimony of FBI Special Agent Brandon Goad (“Goad Testimony”), Hr’g Tr.
at 11:1-7.2 The capture team waited in a vehicle outside Al-Imam’s apartment and took him into
custody after Al-Imam exited his car and walked toward his apartment. Id. at 11:10-13. Some
members of the team “grabbed his arms” while one “covered his mouth.” Id. at 11:16-18. The
capture team loaded Al-Imam into the vehicle and left the scene. Id. at 11:18-20. Special Agent
Goad estimated that this initial capture took only ten seconds, and he did not recall any members
of the capture team pointing weapons at Al-Imam or that Al-Imam resisted in any way. Id. at
11:24-12:10.
Inside the vehicle, Al-Imam was handcuffed and fitted with goggles, ear coverings, and a
verbal restraint. Id. at 12:24-13:8; see Ex 2. These measures were taken, according to Special
Agent Goad, for Al-Imam’s and the capture team’s safety, because they were traveling in an area
that presented the risk of armed conflict had they been discovered. Id. at 13:23-14:6. Prior to
applying the ear coverings, Special Agent Goad—who had memorized “a handful” of Arabic
phrases “to be able to communicate with [Al-Imam] after he was captured,” Id. at 9:6-10—told
Al-Imam that he had been detained by the American government, id. at 14:19-20. Al-Imam,
1
Most witnesses testified using “Zulu Time,” which is two hours behind the local time in
Benghazi, Libya. All times in this opinion are reported in Zulu time, but they have been
converted from the 24-hour military clock to the standard 12-hour clock.
2
All evidence was introduced through testimony and exhibits on the first day of the
evidentiary hearing, March 19, 2019, but legal argument was offered on March 20, 2019. Unless
explicitly indicated (by “Day 2”), any citation to the hearing transcript refers to the first day.
4
who initially had “seemed excited” and “was breathing heavy,” “seemed to completely calm
down, and . . . appeared relaxed from that point on.” Id. at 14:14-17. A member of the capture
team trained as a medic also monitored Al-Imam’s pulse and blood pressure during this initial
transport, but Special Agent Goad said he was not concerned “because it seemed like he had
calmed down, and he was compliant.” Id. at 15:22-23.
The capture team then arrived at a second location, where they met with additional
American personnel. Id. at 16:3-12. The capture team outfitted Al-Imam with a fleece pullover,
an “all-weather trench coat,” and a lifejacket, before replacing his handcuffs and eye and ear
protection. Id. at 16:15-22. The verbal restraint was not replaced, because Special Agent Goad
“didn’t feel there was a need to,” as Al-Imam “was being compliant, and he was following all the
instructions and seemed calm.” Id. at 17:4-6.
While at the second location, Al-Imam communicated with FBI Special Agent Jonathan
Kath, who had a “limited working proficiency in Modern Standard Arabic,” which he said
enabled him to “give commands and understand the responses back” and “engage in basic
conversation.” Testimony of FBI Special Agent Jonathan Kath (“Kath Testimony”), Hr’g Tr. at
27:5-13. Special Agent Kath asked whether Al-Imam “was thirsty and how he felt generally, if
he was fine,” and Al-Imam indicated that he was fine and accepted some water. Id. at 31:4-10.
Special Agent Kath said his overarching responsibility was to “ensur[e]” and “assess[ ]” Al-
Imam’s “status” and “to kind of give him the next steps of . . . what to expect in the arrest
process.” Id. at 27:18-20. He explained that he spoke to Al-Imam in a “conversational tone” and
avoided anything close to “drill-instructor-style orders.” Id. at 27:2-12.
The capture team then escorted Al-Imam to “a staging area to get [Al-Imam] on the
[water]craft that was coming in.” Goad Testimony, Hr’g Tr. at 18:3-4. Special Agents Goad and
5
Kath “hooked underneath both of [Al-Imam’s] arms and took him to the craft when it arrived,”
with Al-Imam’s back facing forward. Id. at 18:11-16. Once they were “about waist deep” in the
water, a “wave knocked the craft back into all of [them], and the back of the craft impacted [Al-
Imam’s] back.” Id. at 19:4-5. After Al-Imam had been lifted onto the boat, Special Agent Kath
again asked him how he was feeling. Kath Testimony, Hr’g Tr. at 33:25-34:1. Al-Imam
responded that his back hurt, but that he was otherwise fine, id. at 34:3-4, and Special Agent
Kath said Al-Imam “appeared entirely fine,” id. at 34:5.
The first boat took Al-Imam to a second boat. Using the same under-arm lifting
technique they had used earlier, Special Agents Goad and Kath moved Al-Imam to the second
boat. Goad Testimony, Hr’g Tr. at 20:25-21:2. When it became clear to the capture team that
Al-Imam was suffering from seasickness, they removed his eye and ear protection in the hope
that it might alleviate his symptoms. Id. at 21:11-14; Kath Testimony, Hr’g Tr. at 35:2-4. It
didn’t help, or at least not enough: at some point on the second boat trip, Al-Imam vomited.
Goad Testimony, Hr’g Tr. at 21:17.
The second boat arrived at a third, this one a large naval vessel, around 11:15 P.M. Id. at
22:6-8. Once Al-Imam was lifted aboard the third vessel, Special Agents Goad and Kath had no
further contact with Al-Imam. Id. at 22:3-5; Kath Testimony, Hr’g Tr. at 35:21. Goad
Testimony, Hr’g Tr. at 22:8. Both Special Agents Goad and Kath described Al-Imam as calm
and compliant on the journey. Id. at 22:24-25 (stating that Al-Imam was “calm and compliant
for the entire transit”); Kath Testimony, Hr’g Tr. at 35:24-25 (describing Al-Iman’s demeanor
during the second boat trip as “very pleasant” and “at no point . . . confrontational at all”).
6
C. Initial Processing Aboard the Naval Vessel
FBI Special Agent Joshua Kolarcik testified at the evidentiary hearing regarding Al-
Imam’s transfer to the third vessel and his initial processing aboard the ship. Because the third
vessel was significantly larger than the one on which Al-Imam had arrived, he had to be hoisted
aboard using a lift. Testimony of FBI Special Agent Joshua Kolarcik (“Kolarcik Testimony”),
Hr’g Tr. at 46:16. This was done by strapping Al-Imam to a “Stokes basket” that had been
lowered to the smaller boat, and then raising the basket, using a pulley system operated by a
“four- to five-man crew,” to one of the larger vessel’s decks. Id. at 46:22-47:7; id. at 47:18-24.
According to Kolarcik, this “couldn’t have gone any better” and Al-Imam was brought “on board
without any incident safely.” Id. at 46:17-19.
Still handcuffed and with his eye and ear coverings on, Al-Imam was escorted to his
“detention pod.”3 Id. at 48:5-6. A “pod” is “basically just a container” with a distinct purpose.
Id. at 44:1-4. The detention pod is where Al-Imam was housed when he was not being
interrogated. Id. at 42:8-9; see Exs. 4-5 (depicting outside and inside of detention pod). It was a
small room, approximately 2.22 meters by 1.95 meters. Id. at 45:10. Posted on the wall inside
the detention pod were rules provided by the “guard force,” the Department of Defense unit
responsible for Al-Imam’s detention aboard the vessel, and certain Geneva Convention articles,
in both English and Arabic. Id. at 43:1-23; see Exs. 6-8. The Air Force Captain4 responsible for
3
Al-Imam was handcuffed behind his back and eye and ear coverings were applied any
time he was moved between rooms on the ship. Testimony of Air Force Captain (“Captain
Testimony”), Hr’g Tr. at 109:20-21.
4
For security reasons, this individual was identified only as “Captain” at the evidentiary
hearing.
7
the guard force provided further details on the detention pod. It contained a “sleeping mat,” a
blanket, a water bottle, a prayer rug, and a Quran, placed on top of a box (rather than the floor) as
a sign of respect. Testimony of Air Force Captain (“Captain Testimony”), Hr’g Tr. at 108:23-
109:3.
Once inside the detention pod, Special Agent Kolarcik and his team began Al-Imam’s
“inprocessing,” or initial processing. Id. at 48:12-14. Id. at 48:19-20. First came photographs of
Al-Imam as he had arrived on the vessel, fully clothed and with scattered “white flecks on his
shoes and pants,” remants of his earlier seasickness.5 Id. at 49:6-10; see Ex. 10.
Next came the “primary objective” of the inprocessing—a medical screening to ensure
that there were no immediate health concerns. Id. at 53:5-6. Al-Imam was given privacy to strip
down to his underwear for the screening, id. at 49:22-23, which was performed by an Air Force
Doctor,6 Testimony of Air Force Doctor (“Doctor Testimony”), Hr’g Tr. at 67:21. Assisted by
an interpreter, the Doctor began with a subjective examination, asking Al-Imam a series of
questions regarding the history of any present illnesses before conducting a more general
“review of systems.” Id. at 65:9-12. Al-Imam reported that he vomited prior to arriving on the
vessel and that he had experienced a “productive cough with a sore throat and nasal congestion
for the past ten days.” Id. at 69:7-8. He indicated that he occasionally took medicine for
rheumatism and that he had last eaten approximately four hours earlier. Id. at 69:16-19.
It is unclear from Special Agent Kolarcik and the Doctor’s testimony whether all of the
5
photographs occurred before the medical screening began in earnest, or whether some were taken
during or after the screening. But it does not make a difference to the analysis of Al-Imam’s
suppression motion.
6
For security reasons, this individual was identified only as “Doctor” at the evidentiary
hearing.
8
Relevant to Al-Imam’s arguments in this motion, he also said he wore glasses “a long time ago”
and “had trouble reading up close,” but he did not complain of any loss of consciousness or head
trauma and did not report any mental health issues. Id. at 71:3-14.
Moving to the physical examination, the Doctor observed “some minor abrasions and
what appeared to be some well-healed scars[.]” Id. at 72:8-9. A series of photographs taken
during the medical screening document each of these: a few small abrasions on the face and
shoulders, and some minor bruising near his biceps, likely close to where he was held by Special
Agents Goad and Kath. See Exs. 11-16. Each of these were noted in the Doctor’s intake form.
See Ex. 18. None of them was sufficiently serious to warrant any treatment. See, e.g., Doctor
Testimony, Hr’g Tr. at 72:19-20. The Doctor chose not to conduct a genital-rectal examination,
because when he indicated he would do so, he said Al-Imam “became visibly upset, tearful,
[and] kind of backed up a little bit from [him][.]” Id. at 72: 1-2.
The only condition that Al-Imam presented requiring immediate attention was the motion
sickness. Id. at 73:4-9. The Doctor “reviewed the potential effects of a medicine,” an over-the-
counter drug called meclizine, and Al-Imam indicated that he wanted to take it. Id. at 74:11-
75:1. The Doctor gave him a dose and, finding no other “acute medical issues,” cleared him for
detention. Id. at 75:14-19. The Doctor continued to see Al-Imam twice each day throughout his
detention and continued providing him with motion-sickness medication. Id. at 80:21-81:24
(discussing follow-up visits); see Exs. 20-23.
Throughout these check-ups, the Doctor testified that Al-Imam responded appropriately
to his questions, that he did not seem confused by the questions, that he did not appear
disoriented, and that he otherwise showed no signs of “acute mental distress.” Id. at 87:14-88:2.
When pressed on cross-examination whether Al-Imam appeared to be “psychologically shut
9
down,” the Doctor answered in the negative and explained that “he was appropriate and
cooperative with me, answering questions appropriately.” Id. at 93:9-22.
Special Agent Kolarcik, who was present for much of Al-Imam’s initial processing,
including some of the medical screening, was also asked about Al-Imam’s treatment and
condition during this time. Kolarcik said that Al-Imam “was treated very gently and humanely,”
that no force was ever required, that “[e]verything was explained to him through the translator,”
that Al-Imam acknowledged he understood what he was being told, that no one “used raised
voices,” and that the entire affair was “very calm and organized and orderly.” Id. at 54:8-12. He
said that he and his team “did [their] best to ensure that [Al-Imam] was comfortable and warm
and to try to limit any emotional stress he may experience during the inprocessing.” Id. at 55:25-
56:5. Finally, while Kolarcik said that Al-Imam appeared “very calm” throughout inprocessing,
he added that Al-Imam also seemed “slightly emotionally distraught, as could be understood
given his situation and following capture and being transported to a Navy vessel[.]” Id. at 55:25-
56:2.
Following the medical screening, the guard force, through the interpreter, explained to
Al-Imam the rules of detention and Article 3 of the Geneva Convention, the same materials
posted in English and Arabic on the detention pod’s walls. See Exs. 5-8. The Air Force Captain
in charge of the guard force testified concerning this portion of Al-Imam’s processing. The rules
of detention included “the [physical] position that he need[ed] to take” before the guard force
entered the pod and “how he could communicate with the guard force” when he needed
something. Captain Testimony, Hr’g Tr. at 105:8-15. Next came the recitation of Article 3,
“which speaks to protection against mistreatment, inhumane care, as well as any humiliation.”
Id. at 106:9-10. Article 3 forbids, inter alia, “[a]ny form of violence, mutilation, cruel treatment,
10
or torture” and “humiliating or degrading treatment.” See Ex. 25 (English version). For both the
rules and Article 3, a member of the guard force read one line in English, and the interpreter then
translated that line into Arabic. Id. at 106:16-20. Al-Imam indicated that he understood and did
not have any questions. Id. at 106:18-24.
D. FBI Interrogations
The first interrogation was slated to begin soon after Al-Imam’s initial processing. The
guard force handcuffed Al-Imam, blindfolded him, applied ear coverings and escorted him to the
interview room. Id. at 108:12-16. Once inside the interview room, the handcuffs and eye and
ear coverings were removed, and all members of the guard force exited. Id. at 109:4-19.
Waiting for Al-Imam in the room for the first and all later interviews were FBI Special Agent
Ryan Larkin, Task Force Officer Anthony Marcano (“TFO Marcano”), and FBI interpreter
Samuel Babisha (who had been handling all translation since Al-Imam boarded the third vessel).
Larkin and Babisha provided testimony regarding the interrogations.
The first interview began at approximately 1:25 A.M. on the morning of October 30—
just over four hours after Al-Imam’s initial capture. Testimony of FBI Special Agent Ryan
Larkin (“Larkin Testimony”), Hr’g Tr. at 188:12-13. Dressed in civilian attire, Hr’g Tr. at
213:6-7, the agents “introduced themselves and asked Al-Imam how he was feeling, id. at
189:20-190:3. Al-Imam responded that he was “a little bit nauseous but overall felt okay,” and
Special Agent Larkin said he appeared “attentive.” Id. at 190:19-21. The agents informed Al-
Imam that he would be permitted to take a break to use the restroom or to pray, id. at 190:8-13,
and they offered him tea and Pop-Tarts, id. at 191:1-5.
Then the agents administered the Miranda warnings. The rights were read by Babisha in
Arabic from a form titled “Advice of Rights,” which was also provided in written Arabic to Al-
11
Imam. Testimony of FBI Interpreter Samuel Babisha (“Babisha Testimony”), Hr’g Tr. at
165:21-166:5. The “Advice of Rights” stated as follows:
ADVICE OF RIGHTS
We are American law-enforcement agents. You have been arrested for violations
of United States criminal law related to the attack on the American mission in
Benghazi, Libya, on September 11, 2012. Because you are under arrest, United
States law provides you with certain rights in your dealings with us.
Before we ask you any questions, we want to make sure you understand your
rights.
You have the right to remain silent.
If you decide to speak with us today, you should know that anything you say can
be used against you in a United States court.
You have the right to talk to a lawyer for advice before we ask you any questions.
If you cannot afford a lawyer, one will be appointed to you before any
questioning if you wish.
Before you decide whether you want to speak with us today, we also want to
explain to you that, because you have been arrested on United States criminal
charges, we are bringing you without unnecessary delay to a courtroom in the
United States. When you arrive in court, a judge will advise you of the charges
against you; give you an opportunity to hire an attorney of your choice, or, if you
cannot afford to hire your own attorney, appoint an attorney to represent you; and
determine whether you should be released on bail pending indictment and/or trial
against you.
Do you have any questions about what I have just explained to you?
Acknowledgement of Rights Waiver of Rights to an Attorney and to Remain Silent
I am willing to make a statement and answer questions. ___
I do not want a lawyer at this time. ___
I understand my rights and my decision is a knowing and voluntary one. ___
No promises or threats have been made to me and no pressure or coercion of any
kind has been used against me. ___
Name: ________________________
Signature:______________________
12
Translator Signature: _____________
Witness Name:__________________
Witness Signature:_______________
Date/Time:_____________________
Ex. 29. Babisha “read [the Advice of Rights] to [Al-Imam] verbatim, word for word.” Babisha
Testimony, Hr’g Tr. at 151:11. As Babisha read aloud, Al-Imam “was following [his copy] with
his fingers and with his eyes also.” Id. at Hr’g Tr. 151:13-14. When Babisha reached the
conclusion of the top part of the form—up to the underlined “Acknowledgement” section—Al-
Imam indicated that he understood the rights that had been read to him. Larkin Testimony, Hr’g
Tr. at 193:2-4. And when asked whether he had any questions about what had just been
explained to him, he responded that he did not. Babisha Testimony, Hr’g Tr. at 151:21-152:1.
After Al-Imam indicated he wished to continue, Babisha read aloud the entirety of the
second part of the form. Larkin Testimony, Hr’g Tr. at 193:2-12. When he finished, he
“directed [Al-Imam] where to sign,” including his initials next to each right he was waiving and
a signature at the end. Id. at 193:15-16. Exactly when and how Babisha did this was the subject
of extensive questioning at the evidentiary hearing. One exchange between Al-Imam’s counsel
and Babisha suggested Babisha played a more directive part in the initialing:
Q. So when—I just want to make sure I understand your answer. Generally
you were saying, “This is where you should initial”; “This is where you
should sign your full name”?
A. So we would read, for example, “I’m prepared to give testimony, to
answer questions,” and I would ask him, “Would you please initial next to
that,” and he would. And I would go to the next one, and so on, so forth.
13
Babisha Testimony, Hr’g Tr. at 166:21-167:4. Another exchange—this one between Al-Imam’s
counsel and Special Agent Larkin—left it unclear how, or if, Babisha prompted Al-Imam to sign
the form:
Q. Did he know what to do with it? I mean, did someone have to say, you
know, “Take a pen and write your name”?
A. Yes. We told him that there were some portions on there for a signature,
yes.
Q. What was said in the interchange?
A. I can’t remember exactly.
Larkin Testimony, Hr’g Tr. at 208:15-20. A third exchange—on redirect, between government
counsel and Babisha—established that before anyone directed Al-Imam where to initial or sign,
he indicated his intent to continue speaking with the agents:
Q. And after you read the top portion of the warning where you talked about
the defendant’s rights under Miranda, was the defendant asked whether he
wanted to speak with the FBI?
A. Yes, he was.
Q. Okay. So before the defendant answered the questions and initialed, had
the defendant already told you that he was willing to speak with you?
A. Yes. We specifically asked him, “Would you like to speak with us after
the reading of it?” And he said, “Yes, I do.”
Babisha Testimony, Hr’g Tr. at 174:11-20. In any event, Al-Imam initialed next to each
statement. Id. at 152:9-11; see Ex. 29. He then signed his full name on the form, after
which Babisha and Special Agent Larkin signed the form. Id. at 170:13-18.
Another issue probed at the evidentiary hearing was whether Al-Imam was able to read
along as his rights were being recited to him during the first interview. At some point while his
rights were being read to him, Al-Imam asked for reading glasses. Larkin Testimony, Hr’g Tr. at
14
194:7. Special Agent Larkin testified that the agents briefly stopped administering the warnings
to ask the guard force to find glasses for Al-Imam, id. at 194:12-15, but that they resumed
without glasses “[b]ecause he was acknowledging that he was understanding what we were
reading.” Id. at 194:19-20. And despite Al-Imam not having his glasses, both Babisha and
Special Agent Larkin testified that Al-Imam appeared able to read without them. Id. at 194:1-2
(“He was just—he was going—like his eyes were moving from right to left.”); Babisha
Testimony, Hr’g Tr. at 147 (“He was following with his eyes the words.”). Eventually, however,
the guard force was able to obtain reading glasses for Al-Imam, and he had them for all
subsequent interviews, including the second one at which he again waived his Miranda rights.
Larkin Testimony, Hr’g Tr. at 195:8-10.
The agents then began to question Al-Imam at about 1:40 A.M., 15 minutes after he
entered the interview room. Id. at 192:1-3; see Ex. 29 (indicating time waiver was signed). At
2:10 A.M., Al-Imam requested to use the restroom. Ex. 26 at 1, Item No. 9. He was secured
with handcuffs and outfitted with eye and ear coverings for the walk to and from the latrine, and
returned to the interview room about 15 minutes later. Id., Item Nos. 10-11. The interview
resumed, but lasted only a few more minutes before Al-Imam vomited. Larkin Testimony, Hr’g
Tr. at 195:14-19. The guard force summoned the Doctor, who consulted with Al-Imam
regarding Zofran, a different motion-sickness medication, and administered a dose at Al-Imam’s
request. Doctor Testimony, Hr’g Tr. at 79:21-25. The agents ended the interview. Larkin
Testimony, Hr’g Tr. at 195:24-196:1. Special Agent Larkin characterized the tone of the first
interview as “conversational” and said that Al-Imam was “attentive” throughout. Larkin
Testimony, Hr’g Tr. at 190:14-19.
15
The guard force escorted Al-Imam to his detention pod at 3:00 A.M., where he remained
until he was escorted to the restroom at 6:35 A.M. Ex. 26 at 2, Item No. 2. At 7:55 A.M., the
Doctor and Babisha visited Al-Imam in the detention pod for a medical screening. Id., Item No.
4.7 Al-Imam reported that he was “no longer nauseated and that he felt much better since the last
exam.” Doctor Testimony, Hr’g Tr. at 81:3-6. The Doctor did not note any other changes from
the previous exam, and he provided Al-Imam with another does of meclizine to stave off a
recurrence of the motion sickness. Id. at 81:9-18. The guard force provided Al-Imam with a
meal about twenty minutes later; Al-Imam ate about a third of it. Ex. 26 at 2, Item Nos. 5, 7.
The second interview began at approximately 10:45 A.M., about eight hours after the first
interview had concluded. Id. at 196:12. The agents replicated their process from the first
interview. They began by asking how Al-Imam was, whether he needed anything, and offered
him tea or water. Id. at 197:4-9. Al-Imam said “he was feeling significantly better,” which
Special Agent Larkin testified appeared to be the case. Id. at 197:10-16. Babisha then
administered the Miranda warnings and obtained Al-Imam’s waiver of his rights using the same
Advice of Rights form. Id. at 198:18-19 (“[I]n terms of how we discussed it with him, it was
exactly the same.”); Babisha Testimony, Hr’g Tr. at 155:15-22 (“Yes, verbatim, word for word,
each time.”). As with Al-Imam’s first waiver, Babisha asked Al-Imam whether he wished to
continue speaking with the agents prior to indicating where he should initial and sign to reflect
that intent. Babisha Testimony, Hr’g Tr. at 174:15-175:4.
7
The Doctor’s records indicate that this screening occurred at 10:00 A.M., some two
hours after the guard force’s log indicates the Doctor and Babisha entered Al-Imam’s detention
pod. See Ex. 20. That could be due to the time lag between the exam and the completion of the
report, but the Court finds the guard force’s time record more reliable in any event.
16
Al-Imam initialed next to each individual right he agreed to waive and signed the form,
and Babisha and Special Agent Larkin followed with their signatures. See Ex. 30. The agents
then questioned Al-Imam for about an hour, before Al-Imam requested, and was given, a
restroom break. Larkin Testimony, Hr’g Tr. at 199:17-20. The interview concluded less than an
hour later, at approximately 12:55 P.M. Ex. 26 at 2, Item No. 16. Special Agent Larkin again
described the tone of the interview as “very conversational” and Al-Imam as “attentive,
answering our questions appropriately, and so on.” Larkin Testimony, Hr’g Tr. at 201:19-23
(describing second and third interviews).
After the guard force escorted Al-Imam back to the detention pod, they provided him
with a bucket of water to wash for prayer. Ex. 26 at 2, Item No. 17. He was also taken to a
shower and given soap, shampoo, and a toothbrush and toothpaste. Id., Item No. 18. The Doctor
and Babisha paid Al-Imam a third visit later that evening, at 7:32 P.M. Doctor Testimony, Hr’g
Tr. at 81:19-21; see Ex. 21. The Doctor reported no significant changes in Al-Imam’s physical
condition, but he did report that Al-Imam was “feeling sad because he didn’t know what time to
pray.” Id. at 82:1-2. The guard force apparently told Al-Imam that he was free to pray
“whenever he desired.” Id. at 82:9. The Doctor followed up on Al-Imam’s reported sadness,
asking whether he had “any suicidal ideation or want[ed] to hurt himself.” Id. at 83:1-2. Al-
Imam answered that he did not, and the Doctor administered another dose of meclizine to guard
against motion sickness. Id. at 83:3-14. The guard force provided Al-Imam with another meal
and an opportunity to wash and pray before another interview scheduled to begin shortly
thereafter. Ex. 26 at 3, Item Nos. 7, 9.
The third interview occurred later that same day, October 30, around 8:50 P.M. Ex. 26 at
3, Item No. 10. The agents began, as they had in the prior two interviews, by asking Al-Imam
17
“all the same questions about how he was feeling.” Larkin Testimony, Hr’g Tr. at 201:4-5. Al-
Imam reported that “he was feeling good” and “wasn’t feeling nauseous.” Id. at 201:6-7. He did
not indicate that he was feeling sad or scared. Id. at 201:8-12. Al-Imam was also asked whether
he had the opportunity to pray between interviews, and he answered that he had. Id. at 201:13-
18.
But then the agents veered from the course taken in the first two interviews; they did not
administer Miranda warnings or otherwise seek a waiver of his rights. Id. at 201:24-202:6.
When asked why, Special Agent Larkin testified that, after consultation with “lawyers back at
the FBI and the team,” they had determined that one set of warnings per day would be
sufficient.8 Roughly eight hours had elapsed between the end of the second interview and the
beginning of the third, while about ten hours separated the last issuance of Miranda warnings
from the start of the third interview.
The agents commenced questioning. Al-Imam was reportedly “very conversational,”
“attentive,” and answered the agents’ questions “appropriately.” Id. at 201:22-23 (using same
language to describe interviews two and three). He again requested, and was given, a restroom
break in the middle of the interview. Ex. 26 at 3, Item No. 11. At one point during the
interview, Al-Imam asked the agents if they “could get him some different types of food, like
olives and rice and coffee.” Larkin Testimony, Hr’g Tr. at 202:9-12. The interview concluded at
approximately 10:20 P.M., less than two hours after it had begun. Ex. 26 at 3, Item No. 13. Al-
8
As a technical matter, the agents actually administered two sets of warnings on the day
of October 30. But because the first came before Al-Imam retired to sleep for the night, they
considered that a distinct day for purposes of the warnings.
18
Imam returned to his detention pod, where he remained undisturbed for the next eight-plus hours.
Id. at 3-4, Item Nos. 13-2.
At 7:00 A.M. the following morning, October 31, the Doctor conducted a fourth
medical screening to verify that Al-Imam remained fit for detention. Doctor Testimony,
Hr’g Tr. at 84:4-7. Al-Imam reported that he had slept well and that he “was feeling
much better” but that “his hips were a little sore.” Id. at 84:10-14. Although not
discussed at the evidentiary hearing, the Doctor’s record of that visit also indicates that
Al-Imam had “increased water and food intake.” Ex. 22. The Doctor concluded his visit
by administering another dose of meclizine for motion sickness at Al-Imam’s request.
Doctor Testimony, Hr’g Tr. at 84:15-17.
Al-Imam then used the restroom and returned to the detention pod, where the
guard force had left a fresh bucket of water for his morning prayer. Ex. 26 at 4, Item No.
5. He was also given a meal, and this time the log provides details: pound cake, veggie
crackers, turkey nuggets, and chili mac-n-cheese. Id., Item No. 6. Al-Imam ate some
portion of it. Id., Item No. 6.
The fourth interview began at approximately 9:10 A.M. on October 31. Larkin
Testimony, Hr’g Tr. at 202:23. The agents “exchanged our normal pleasantries, offered
him some things and asked him . . . if he had slept well, if he was feeling okay.” Id. at
203:6-8. Al-Imam responded that “he hadn’t slept well, and that he had been thinking
about his family, and that they would be worried about him.” Id. at 203:8-10. Special
Agent Larkin testified that Al-Imam “seemed a little bit more down that day” than at their
previous sessions together. Id. at 203:13.
19
Babisha then proceeded to read the Advice of Rights form, while Al-Imam
followed along, consistent with the previous two Miranda administrations. Id. at 203:21-
24. This time, however, Al-Imam said “something to the effect of ‘I think I might want
to have a lawyer here with me.’” Id. at 203:24-25. Many questions at the evidentiary
hearing focused on exactly what words Al-Imam used to invoke his right to counsel and
his demeanor when he did so. Babisha testified on direct that Al-Imam said “‘You told
us I have the right for an attorney,’ and he said, ‘I would like that.’” Babisha Testimony,
Hr’g Tr. at 156:14-16. Pressed on cross, Babisha testified that “The way he phrased it
was, ‘You said something about I have a right to an attorney. I would like to have an
attorney.’” Id. at 167:13-15. While Babisha acknowledged he did not recall the exact
words, he said it was “pretty close” to his formulation; he also clarified that the “you” in
Al-Imam’s statement referred to Babisha, who had just read aloud that particular right.
Id. at 167:16-168:3. Special Agent Larkin was asked on cross whether it seemed Al-
Imam “was having a mental realization at [the] moment” he invoked his right to counsel,
and Larkin answered, “I couldn’t say.” Larkin Testimony, Hr’g Tr. at 212:15-18. He
was similarly unsure of how to answer the question whether it seemed that what Al-Imam
“was reading . . . was novel to him.” Id. at 212:19-23.
In any case, the agents heeded his request. Id. at 204:2-5. They “told him that
was his right and that . . . [they] couldn’t provide him a lawyer on the boat so that [they]
wouldn’t continue to talk to him until he had the opportunity to have a lawyer.” Id. After
the agents told Al-Imam that they would not ask him any further questions, Al-Imam
“said something to the effect of, ‘If you guys aren’t going to beat me, I would like to just
go back to my cell and sleep a little bit.’” Id. at 204:6-10. Babisha testified that Al-
20
Imam “became emotional” and “[s]ad” around this time. Babisha Testimony, Hr’g Tr. at
171:20-21. The agents were “taken aback that he thought anybody was going to beat
him” and “immediately told him . . . ‘[t]hat’s never going to happen while you’re in the
custody of the U.S.” and that he “won’t be harmed in any way.” Larkin Testimony, Hr’g
Tr. at 204:12-16.
Al-Imam did not, however, choose to immediately return to his detention pod. Id.
at 205:1-2. He had just gotten the coffee and olives he requested in the prior interview,
so he engaged in “small talk . . . about soccer and other things” while he finished them.
Id. at 205:1-7. About 20 minutes later, the guard force returned Al-Imam to his detention
pod, and the FBI conducted no further interviews with Al-Imam while aboard the vessel.
Id. at 205:15-23; Babisha Testimony, Hr’g Tr. at 159:11 (stating that agents “never
again” tried to speak with Al-Imam on the vessel).
E. Other Relevant Facts
Several other issues were explored at the evidentiary hearing that the Court finds
relevant to the disposition of Al-Imam’s motion. One was whether Al-Imam ever
indicated that he was abused during the capture operation or while on board the vessel, or
whether it appeared that he had been. Special Agent Goad testified that no member of
the capture team had ever physically abused Al-Imam and that Al-Imam had not reported
any such abuse. Goad Testimony, Hr’g Tr. at 22:13-23. Special Agent Kath, who
communicated with Al-Imam during the transport, said the same. Kath Testimony, Hr’g
Tr. at 36:4-13. Special Agent Kolarcik testified that Al-Imam was treated “very gently
and humanely” throughout his initial processing aboard the third vessel. Kolarcik
Testimony, Hr’g Tr. at 54:1-12. The Doctor who examined Al-Imam throughout his
21
detention on the vessel testified that Al-Imam neither showed signs of physical abuse nor
reported any abuse. Doctor Testimony, Hr’g Tr. at 72:21-25. Babisha—who was with
Al-Imam throughout the initial processing, the several medical screenings, and the
interviews—was asked whether, as “the only Arab[ic] speaker on the ship,” Al-Imam
ever told him that “he had been abused or maltreated,” and Babisha answered that he
never did. Babisha Testimony, Hr’g Tr. at 159:14-18. Counsel for Al-Imam did not
elicit any testimony contradicting these representations, nor has he made any argument
suggesting the contrary. Day 2 Hr’g Tr. at 3:22-25 (conceding that “politeness of the
officers is clear” and “not accusing them of mistreatment of Al-Imam in this motion”).
Babisha’s aptitude as an interpreter was also the subject of extensive questioning at the
hearing. See Babisha Testimony, Hr’g Tr. at 120-135. Babisha joined the State Department
after the terrorist attacks of September 11, 2001, id. at 120:21, and he remained there until
joining the FBI in 2008, id. at 121:18. In his nearly twenty-year career as an interpreter, Babisha
has translated thousands of documents and interpreted several hundred in-person interviews. Id.
at 122:13-24. While at the State Department, Babisha was promoted to the highest level of
interpreter, known as “conference-level,” id. at 127:2-128:2, earning the opportunity to interpret
for high-ranking State Department officials, including then-Secretary of State Condoleezza Rice,
id. at 128:11-13.
Babisha has continued to distinguish himself at the FBI. There, he has been regularly
subjected to a “quality review process,” and he has never once received an unsatisfactory review
for either his written or oral translations. Id. at 125:2-18. He has interpreted for former Director
Robert Mueller and “other very high-ranking officials.” Id. at 128:18-24. What’s more, soon
after joining the FBI, he began creating his own “glossary” of terms, catered to the “specialties”
22
of his work, which he shares with his “fellow linguists.” Id. at 129:9-14. More informally,
Babisha hones his Arabic by speaking Arabic at home with his wife, watching Arabic-language
movies, listening to Arabic music, attending places of worship that conduct services in Arabic,
and spending time with Arabic-speaking friends. Id. at 129:25-130:4.
Babisha testified that there are four dominant dialects of Arabic, and that he has extensive
experience translating “Maghreb,” the dialect commonly spoken in Libya. See id. at 131:1-25.
But according to Babisha, even where he encounters a dialect with which he is somewhat
unfamiliar, the speakers can “very quickly . . . adjust our conversations to that effect.” Id. at
133:18-20. And if the speakers are still speaking past one another, Babisha said it is his practice
to “ask the speaker . . . if there’s a word I wasn’t sure I understood him correctly. I would use
another word, for example, to say, ‘Did you mean this word?’ and he would tell me yes.” Id. at
134:2-5.
Throughout his time with Al-Imam, Babisha testified that he had no trouble
understanding Al-Imam and that Al-Imam had no difficulty understanding him. See, e.g., id. at
146:1-5 (Al-Imam had no issues understanding Babisha during his initial processing); id. at
146:12-14 (no problems communicating with the Doctor); id. at 146:15-147:16 (no difficulty
understanding the guard force’s rules or Article 3 of Geneva Convention); id. at 153:16-20 (“He
understood, and he answered exactly what was being asked of him” during the first interview.);
id. at 154:13-18 (no concerns about whether Al-Imam was sufficiently educated to understand
him). Special Agent Larkin echoed that. Larkin Testimony, Hr’g Tr. at 200:3-8 (answering “No,
not at all” to question of whether they had a “hard time understanding each other through the
interpreter”).
23
II. Discussion
Al-Imam’s sole argument for suppression is that his statements were obtained in violation
of Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the Supreme Court announced that
“the prosecution may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination.” 384 U.S. at 444. Chief among these
safeguards are the now-familiar Miranda warnings: a defendant “must be warned prior to any
questioning that he has the right to remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford
an attorney one will be appointed for him prior to any questioning if he so desires.” Id. at 479.
A defendant can “knowingly and intelligently waive these rights and agree to answer questions
or make a statement,” but the prosecution bears the burden of proving (by a preponderance of the
evidence) that the warnings were given and that the defendant waived his right before any
“evidence obtained as a result of interrogation can be used against him.” Id.
Whether a defendant’s waiver of his Miranda rights is valid turns on an “inquiry [with]
two distinct dimensions.” Moran v. Burbine, 475 U.S. 412, 421 (1986). “First, the
relinquishment of the right must have been voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must
have been made with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.” Id. “Only if the totality of the circumstances
surrounding the interrogation” shows that both criteria are satisfied can a Miranda waiver be
valid. Id. (internal quotation marks omitted). In making this determination, courts should
24
examine “the particular facts and circumstances surrounding the case, including the background,
experience, and conduct of the accused.” Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983).
There is no dispute that Al-Imam was given Miranda warnings. The propriety of
suppression therefore hinges on whether his waiver of those rights was effective. Al-Imam
contends that the government cannot meet its burden to prove that his waiver was voluntary,
knowing, and intelligent. He suggests that three facets of the interrogations undermine the
validity of his waiver: first, the fact that he was abducted meant that he remained in a particularly
vulnerable state of mind during the interrogations, especially the first interview that began in the
early morning hours of October 30, Mot. Suppress at 4; second, the manner in which his rights
were communicated to him was coercive and confusing, id. at 5; and third, his “if you won’t beat
me” statement shows that, throughout the interrogations, he was under the impression that he
would be harmed if he was uncooperative, id. at 6. The government responds that Al-Imam
appeared calm and composed, not rattled, in the interrogation sessions; that Al-Imam was
capable of understanding the spoken and written translation of his rights and that the waiver form
was not otherwise confusing; and that throughout his time aboard the ship—whether before,
during, or in between interrogations—he was treated humanely and courteously.
So, to the first question in Burbine: was Al-Imam’s waiver “voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion, or
deception[?]” 475 U.S. at 421. At the outset, the Court notes that it rejected a similar
voluntariness challenge in the Abu Khatallah case. Many of Al-Imam’s arguments track Abu
Khatallah’s and largely present as weaker versions of his alleged co-conspirator’s. For instance,
Abu Khatallah endured a seemingly more traumatic (and certainly more violent) capture than did
Al-Imam, and he was subjected to five days of interrogation by American intelligence officials,
25
without ever being advised of his Miranda rights, before the FBI interrogations related to his
criminal prosecution began. United States v. Abu Khatallah, 275 F. Supp. 3d 32, 67 (D.D.C.
2017). Indeed, what the Court said in Abu Khatallah could almost apply verbatim here:
Considering the totality of the circumstances, the Court finds that Abu
Khatallah’s Miranda waivers were “made voluntarily, knowingly and
intelligently.” Burbine, 475 U.S. at 421. The waivers were voluntary because the
conditions Abu Khatallah experienced prior to waiving his rights were not
coercive, and did not in any way prevent his waivers from being “the product of a
free and deliberate choice.” Id. No threats or promises were made to induce the
waivers, and Abu Khatallah was physically unrestrained before, during, and after
each waiver was made. The waivers were elicited by an unarmed team of FBI
personnel—an Arabic interpreter, and two agents dressed in civilian clothes—
with no DOD guards present. They were in every instance preceded by a health
and welfare check, which ensured that Abu Khatallah was well-rested, engaged,
and alert. And Abu Khatallah was treated humanely and courteously: He was
given breaks every hour or two, and offered snacks and refreshments. The sheer
number of times Abu Khatallah waived his Miranda rights—once in writing and
twice verbally on each typical interview day—is further evidence of the waivers’
voluntariness.
Abu Khatallah, 275 F. Supp. 3d at 66-67 (citations to the hearing transcript omitted).
All those same facts are present here. Special Agent Larkin and TFO Marcano
always treated Al-Imam with respect and neither appeared threatening nor acted
aggressively towards him. See, e.g., Babisha Testimony, Hr’g Tr. at 159:14-18. Counsel
for Al-Imam conceded as much at the evidentiary hearing. Day 2 Hr’g Tr. at 3:22-25
(stating that the “politeness of the officers is clear” and that he is “not accusing them of
mistreatment of Al-Imam in this motion”). The agents and the interpreter wore civilian
clothes and were unarmed; they spoke in normal conversational tones; and they
frequently checked on Al-Imam’s well-being. Larkin Testimony, Hr’g Tr. at 190:14-19.
The interrogations were not extensive and were punctuated by regular breaks, sometimes
to use the bathroom, other times to eat, rest, and pray. See, e.g., Ex. 26 at 3, Item No. 13
(ending interview after less than 90 minutes of actual questioning). In addition, Al-Imam
26
was Mirandized twice and twice he waived his rights, orally and in writing. See
Colorado v. Spring, 479 U.S. 564, 576 (1987) (“Indeed, it seems self-evident that one
who is told he is free to refuse to answer questions is in a curious posture to later
complain that his answers were compelled.”); United States v. Yunis, 859 F.2d 953, 961
(D.C. Cir. 1988) (“The administration of proper Miranda warnings, followed by a written
waiver of the rights described in those warnings, will usually go far toward demonstrating
that a decision to speak is not compelled.”). Last but no less significant, Al-Imam
actually invoked his right to counsel and effectively terminated a fourth interrogation.
Babisha Testimony, Hr’g Tr. at 156:14-16. Given that the warnings administered prior to
that interrogation were identical to those administered the first two times he waived his
rights, it seems clear that he understood all along that he could not be compelled to speak
without counsel present.9
In spite of this, Al-Imam argues his waiver was involuntary for three reasons: the FBI
agents exploited his fragility in the immediate aftermath of his capture; they used a
“psychologically coercive” waiver form to elicit his waiver; and they caused Al-Imam to fear
that he would be beaten if he did not waive his rights. None of these arguments are persuasive.
Al-Imam first asserts that his waiver was involuntary because it was a byproduct of the
government exploiting the psychological trauma caused by his abduction. This Court, and many
others, have already rejected variants of this argument. See, e.g., Abu Khatallah, 275 F. Supp.
9
Counsel for Al-Imam attempted to elicit testimony from Babisha and Special Agent
Larkin that suggested this was the first time Al-Imam actually understood his right to counsel,
see Larkin Testimony, Hr’g Tr. at 212:15-18, but the Court finds that Al-Imam likely understood
his right to counsel the first two times he was administered Miranda warnings, even if he chose
not to invoke his right to counsel at those times.
27
3d at 67; United States v. Havlik, 710 F.3d 818, 822-23 (8th Cir. 2013) (physical altercation
during arrest did not render invalid a waiver given after the defendant had calmed down). Al-
Imam acknowledges the tide of authority contrary to his position but contends “there has been a
dramatic shift in the scientific understanding of the effects of trauma on the brain that preclude
reliance on these older authorities.” Mot. Suppress. at 4. He points to research by David
Alexander and Susan Klein on the psychological effects of kidnapping and hostage-taking. See
Alexander & Klein, Kidnapping and Hostage-Taking: A Review of Effects, Coping and
Resilience, 102 J. ROY. SOC. MED. 16 (2009). Among these effects, Al-Imam reports, are
impaired memory and concentration, confusion, hyperarousal, and fear and anxiety. Mot.
Suppress at 4. Al-Imam contends he was suffering from these symptoms, and that the
“government did not wait for these symptoms to subside, but exploited them by having Al-Imam
quickly sign an ‘Advice of Rights’ form and then interrogating him in the middle of the night[.]”
As evidence that he must have been mentally reeling from his abduction when he twice waived
his Miranda rights, Al-Imam emphasizes that “[a]s soon as he had one day to process the brain
effects of his sudden abduction from his home, homeland, and pregnant wife,” he regained his
wits and asked for a lawyer. Mot. Suppress at 4-5; Day 2 Hr’g Tr. at 5:18-6:3 (arguing it was
significant that Al-Imam invoked his right to counsel “finally, after getting some sleep, getting
oriented”). The Court is unpersuaded.
As an initial matter, even if the Court were to credit the new research on which Al-Imam
relies, it concerns, as the title suggests, victims of kidnappings and hostage-takings, not
individuals who have been captured and detained by law enforcement. The prospect of extreme
violence, torture, and even death goes hand-in-hand with the former but not with the latter, at
least not in this case. Al-Imam knew early on that this was not a run-of-the-mill kidnapping or
28
hostage-taking; the capture team almost immediately informed Al-Imam that he was being taken
into United States custody. Furthermore, the government elicited testimony that Al-Imam
appeared to relax once he learned that fact. Goad Testimony, Hr’g Tr. at 14:14-17. That would
suggest, notwithstanding whatever cruelty Al-Imam may have perpetrated on captives or endured
as a captive himself, that he understood he would be treated more humanely in U.S. hands.
Moreover, the government’s detailed and credible account of the capture does not paint a
picture of a traumatic abduction that would necessarily render Al-Imam’s subsequent waivers
invalid. Without minimizing the stress one must experience at being forcibly whisked away in
the dark of night, it is hard to imagine a capture being conducted in a calmer or more humane
manner. The American forces effectuated the capture without the use or show of weapons; they
identified themselves; and they narrated their movements and the steps they were taking to keep
Al-Imam safe. See, e.g., Goad Testimony, Hr’g Tr. at 11:24-12:10; Kath Testimony, Hr’g Tr. at
36:4-13. From the time he was captured to his arrival on the large naval vessel, Al-Imam
apparently offered no resistance; he suffered no significant injuries during the arrest; and he was
cooperative and communicative. See Doctor Testimony, Hr’g Tr. at 72:21-25. The fact that Al-
Imam suffered seasickness does not significantly alter the calculus. According to uncontradicted
evidence introduced at the hearing, it did not seem to be all that debilitating: Al-Imam was given
motion-sickness medication when it flared up, he was able to eat meals in between
interrogations, and he repeatedly told the Doctor (who examined him frequently) and the agents
that he was feeling fine. See, e.g., Doctor Testimony, Hr’g Tr. at 81:3-6. Besides, Al-Imam’s
last bout of vomiting happened several hours before he executed a Miranda waiver a second
29
time—after he had eaten, prayed, and told the Doctor and the agents that he was no longer
nauseated and feeling much better.10
Finally, according to extensive testimony at the evidentiary hearing, almost all outward
signs indicated that Al-Imam was not laboring under debilitating psychological trauma. The
Doctor testified that he had experience providing medical care “following traumatic situations,”
id. at 91:3-5, but denied observing any symptoms of Al-Imam “shutting down” as a result of his
abduction, id. at 93:9-21. When pressed on this issue, the Doctor testified that Al-Imam “was
appropriate and cooperative,” id. at 93:21, and that he never showed “signs of agitation,” except
for when he expressed discomfort with the genital-rectal examination, id. at 94:23-95:14.
Special Agent Larkin and Babisha testified similarly. They testified that, far from seeming
distressed or agitated, Al-Imam was calm enough to engage in idle chatter about his family and
soccer, Babisha Testimony, Hr’g Tr. at 150:11-151:2, and venture requests for his preferred
foods, Larkin Testimony, Hr’g Tr. at 202:9-12 (discussing Al-Imam’s request for coffee and
olives). These are not the signs of a man suffering from the sort of trauma that would preclude
him from validly waiving his Miranda rights. See Yunis, 859 F.2d at 963 (stating that “an
assessment of external behavior is the best way of evaluating the effect of” claimed injuries or
illnesses affecting voluntariness). It is instructive that courts considering comparatively more
traumatizing captures and detentions have nevertheless rejected voluntariness challenges. Abu
10
Al-Imam nevertheless says the eight-hour break he was given between the first and
second interrogations did little to lessen his disorientation, because he was only allowed to sleep
for three of those hours. Day 2 Hr’g Tr. at 7:4-8. But Al-Imam told the Doctor that he had slept
well, and that he “was feeling much better.” Doctor Testimony, Hr’g Tr. at 84:10-14. The
Doctor’s record of his visit also indicates that Al-Imam had “increased water and food intake.”
Ex. 22.
30
Khatallah, 275 F. Supp. 3d at 42 (waiver was valid even though defendant was thrown to the
ground and resisted arrest for “three to four minutes” by “punching, biting, and kicking his
captors”); Yunis, 859 F.2d at 955-56 (waiver was valid when “take down” during capture broke
defendant’s wrists and where defendant suffered much worse seasickness). The Court likewise
rejects this one.
Next, Al-Imam argues that the form stating his rights and asking whether he would waive
those rights was “psychologically coercive” because it did not contain an “option to sign in a
way to indicate his objection to questioning.” Mot. Suppress. at 5. This defect on the face of the
form was compounded, according to Al-Imam, by the fact that the agents “undoubtedly
instructed [him] to ‘sign here.’” Id. This argument also fails.
Although the form, as Al-Imam says, does not contain a statement (next to which the
defendant could initial) that the defendant objects to further questioning, other features of the
form undermine any notion that it is “psychologically coercive.” See Ex. 29. For one thing, the
“Advice of Rights” portion of the form—which in clear and simple sentences, separated by a
line-break, explained why he was being held and set forth his right to remain silent and to have a
lawyer present during questioning—is separated from the “waiver” portion. Id. As the
government argues, “the structure and language of the form clearly separated the announcement
of the defendant’s rights, from any decision to waive those rights.” Opp. at 25. For another
thing, the form requires the defendant to waive each right individually; for instance, he must
initial next to the phrase “I am willing to make a statement and answer questions” and next to the
phrase “I do not want a lawyer at this time.” Id. The interpreter Babisha clarified at the hearing
that he walked through this portion of the form one right at a time. Babisha Testimony, Hr’g Tr.
at 166:21-167:4 (“And I would go to the next one, and so on, so forth.”). This allowed Al-Imam
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to carefully consider each discrete right before indicating his intent to relinquish it. And that is
not all: the form also asks the defendant (in the advice of rights portion) if he has “any questions
about what I have just explained to you,” and contains a statement (in the waiver portion) that he
must initial attesting that he understands his rights and that he is voluntarily giving them up. Id.
These are not the hallmarks of a coercive form, even if it lacks an option for the defendant to
affirmatively assert his rights.
At the hearing, counsel for Al-Imam seized on Special Agent Larkin’s testimony that
Babisha “might have directed [Al-Imam] where to sign,” Larkin Testimony, Hr’g Tr. at 193:15-
16, and Babisha’s testimony that he “asked [Al-Imam] to sign in the appropriate places,” Babisha
Testimony, Hr’g Tr. at 166:11-12. Yet a fuller picture of the testimony at the hearing suggests
Babisha’s assistance with the form was more reactive than directive: he indicated where Al-
Imam was to initial and sign the form after Al-Imam indicated he wished to continue speaking
with the agents. See supra at 14-15; see also Babisha Testimony, Hr’g Tr. at 174:11-20. In any
event, it seems unlikely that Al-Imam understood Babisha or the agents to be ordering him to
sign the form, or that he had no choice but to do so, given that just hours later he would invoke
his right to counsel and refuse to sign the waiver.
That leaves only Al-Imam’s argument that he waived his rights, at least in part, because
he feared physical retribution if he did not. Al-Imam’s sole support for this contention is his
statement, after he invoked his right to counsel, that he would like to return to his living quarters
so long as he would not be beaten. Granted, this exchange provides at least some indication that
Al-Imam feared that he might be physically abused if he chose not to participate in the
interrogations. This fact, however, does not significantly alter the voluntariness calculus. “[T]he
voluntariness of a [Miranda] waiver . . . has always depended on the absence of police
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overreaching[.]” Colorado v. Connelly, 479 U.S. 157, 170 (1986). The Supreme Court has
roundly rejected the argument that an attempted waiver is “invalid whenever the defendant feels
compelled to waive his rights by reason of any compulsion, even if the compulsion does not flow
from the police.” Id.; see also id. (“Miranda protects defendants against government coercion
leading them to surrender rights protected by the Fifth Amendment; it goes no further than that.”
(emphasis added)). Thus, even though a court must take into account a defendant’s particular
circumstances, Bradshaw, 462 U.S. at 1046, those circumstances alone—especially when they
amount to a privately-held fear that would not be obvious to the interrogators—are ordinarily not
enough to find a Miranda waiver involuntary. Instead, the interrogators must also perpetrate
some abuse of power.
Al-Imam can point to no such abuse here. Again, his counsel conceded at the evidentiary
hearing that the agents treated Al-Imam fairly and humanely throughout the interviews, and he
has made no argument that other actors involved in his detention were abusive in any way. Day
2 Hr’g Tr. at 3:22-25 (stating that the “politeness of the officers is clear” and that he is “not
accusing them of mistreatment of Al-Imam in this motion”). His only pertinent argument is one
the Court already rejected: that the interviews started too soon after his abduction, without an
ample opportunity to rest and recuperate. Id. at 7:24-8:1 (“[T]he strategy shows they’re trying to
accomplish getting information without actually having him provide them a valid waiver.”). As
evidence of this larger “strategy”—which was purportedly to prey on Al-Imam’s disorientation
and fatigue—Al-Imam’s counsel highlighted the fact that the agents did not administer Miranda
warnings during the third interview, after Al-Imam had “the psychological benefit of resting.”
Id. at 7:21-22; see also Larkin Testimony, Hr’g Tr. at 201:24-202:6 (explaining that the agents
did not Mirandize Al-Imam the night of October 30 because he had been Mirandized eight hours
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earlier that same day). The Court finds this conjecture unsupported by the record; the agents
Mirandized Al-Imam the first two times they met with him on October 30, and again on the
morning of October 31; that they failed to do so on the third October 30 interview does not
suggest some pernicious plan to elicit an involuntary waiver.
To be sure, Al-Imam may well have expected physical abuse to follow if he refused to
speak to the FBI interrogators. But the Court finds nothing in the record that suggests the agents
should have detected this fear and understood Al-Imam’s vulnerability the first three times they
spoke with him. Nor does the Court find anything to suggest that whatever fear Al-Imam was
experiencing was inspired by the conduct of the U.S. personnel he encountered. As Al-Imam’s
counsel admitted during his argument, “there are two parts of voluntariness” and “[o]ne is the
government’s misconduct.” Day 2 Hr’g Tr. at 4:18-20. Because the record is “devoid of any
suggestion that [the government] resorted to physical or psychological pressure to elicit the
statements,” Burbine, 475 U.S. at 421, Al-Imam’s argument that his waiver was obtained
involuntarily fails.
Now, to the second question in Burbine: whether the waiver was “made with a full
awareness of both the nature of the right being abandoned and the consequences of the decision
to abandon it.” 475 U.S. at 421. Here, Al-Imam’s principal argument is that his lack of
education and familiarity with American legal culture prevented him from fully understanding
his Miranda rights and the consequences of waiving them. He complains, for instance, that while
the phrase “you have the right to remain silent” is familiar enough to American ears, that
language “encompasses notions of legal rights non-existent in Libya.” Mot. Suppress at 5. But
even assuming that the import of the “right to remain silent” may have been lost on Al-Imam, the
rest of the form is less ambiguous. Immediately after the right to remain silent, the form says
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“[i]f you decide to speak with us today,” Ex. 29 (emphasis added), which indicates Al-Imam had
the choice not to speak with them. The next two lines provide that “[y]ou have the right to talk
to a lawyer for advice before we ask you any questions” and “[y]ou have the right to have a
lawyer with you during questioning.” Ex. 29. All these statements clarify what the “right to
remain silent” means: that Al-Imam had a choice whether to speak with the agents, or at least
that he did not have to speak with them until a lawyer was present. And if this still left matters
unclear for Al-Imam, the very last line of the “Advice of Rights” asks him whether he has any
questions regarding the rights just explained. Id.
Even if the form could have been clearer, the Court would still reject his challenge.
Courts, including this one, have viewed skeptically arguments that a defendant’s lack of
education and particular cultural background can render a waiver unknowing. In Abu Khatallah,
the defendant raised an essentially identical argument. 275 F. Supp. 3d at 68. Although this
Court said that Abu Khatallah’s “status as a foreign national” is “one relevant factor in
evaluating” whether his waiver was knowing and intelligent, it declined to hold that it was
sufficient to render the waiver (which was made using a substantially similar process to that
employed in this case) unknowing. Id. In doing so, the Court noted the D.C. Circuit’s rejection
of a similar argument in Yunis and similar decisions by courts across the country. Id. (citing
United States v. Labrada-Bustamante, 428 F.3d 1252, 1259 (9th Cir. 2005) (valid waiver where
defendant “might not be familiar with the United States’ form of justice”) and United States v.
Hasan, 747 F. Supp. 2d 642, 669 (E.D. Va. 2010) (valid waiver by “non-English speaking and
illiterate Somali nationals without any connection to the United States”)). The Court doubts that
Al-Imam was any less equipped to comprehend his rights and the effect of waiving them than the
defendants in any of the cases just cited. Testimony on this subject at the evidentiary hearing
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suggested that Al-Imam had no difficulty comprehending his rights. One example: Babisha was
asked whether he was “concerned that [Al-Imam] maybe wasn’t educated enough to understand
either the rights or the conversation that was going on,” and he responded: “[n]o, that was not the
case. I was not ever concerned about his understanding, that it wasn’t adequate.” Babisha
Testimony, Hr’g Tr. at 154: 13-18. And again, Al-Imam did invoke his right to counsel during
the third Miranda administration, which suggests he understood his rights the first two times as
well but simply chose not to invoke them. See supra 27 n.9.
* * *
For all these reasons, the Court concludes that Al-Imam’s two Miranda waivers were
voluntary, knowing, and intelligent. It therefore will deny his motion to suppress the statements
he offered during his interviews with the agents while aboard the naval vessel. A separate Order
shall accompany this memorandum opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: April 8, 2019
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