GUANTANAMO BAY NAVY BASE, Cuba -- Military prosecutors turned Khalid Sheik Mohammeds self-published Invitation to Happiness over to the FBI as potential evidence soon after his lawyers handed them the document last year, a court filing shows.
By last week, according to defense lawyers on the case, two FBI agents questioned a contract security officer on one of the defense teams and sought to enlist him as a secret informant.
At issue now for the judge, Army Col. James L. Pohl, is whether, as defense lawyers claim, the FBI incursion into pretrial preparation in the Sept. 11 case could compromise the integrity of the lawyers for the five men awaiting a death-penalty tribunal for the 2001 terror attacks.
Or, as the prosecution argues, the fact that a security officer involved in pretrial strategy for alleged 9/11 plot deputy Ramzi bin al Shibh answered questions from FBI agents about other team members, is not evidence of an actual conflict.
Tuesday, the issue halted this years first pretrial proceedings of the Sept. 11 case that seeks to put Mohammed and four accused accomplices on trial for allegedly orchestrating the terror attacks that killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon.
Pohl dispensed with the issue that was supposed to be this weeks focus whether bin al Shibh is fit for trial by declaring the Yemeni competent until somebody argued otherwise. Then he began an inquiry into how an FBI investigation might complicate the case.
The judge ordered everyone working for the 9/11 defense teams to notify their lead lawyer if U.S. government agencies, including the FBI, had contacted them. He also sought a proposal from defense lawyers of what evidence he should gather, which people he should question. Left unclear was whether the FBI would cooperate.
At Mondays hearing, the judge pointedly asked the prosecutor, Army Brig. Gen. Mark Martins, if his prosecution team was aware of this visit by two agents to the bin al Shibh team members house on Sunday, April 6, to question him after church. At issue, in part, was how the Huffington Post and Britains Channel 4 television got a copy of the Mohammed commentary.
No, we were not, Martins replied even before the judge had finished his question.
Defense lawyers said Monday that Mohammeds attorneys furnished unclassified copies of the document that offers 36 pages of the alleged 9/11 masterminds musings on such far-flung issues as gay marriage and soldier suicide to members of the defense and prosecution team inside the war court last year.
It wasnt case evidence, and wasnt so marked. In fact, Mohammeds defense lawyers, argued in a recently unsealed March 14 filing, the CIA declared it unclassified.
But a just-released emergency prosecution filing, dated Feb. 28, shows that prosecutors treated two copies as court evidence after defense lawyers handed them the document they said was entitled, Statement to the Crusaders of the Military Commissions in Guantánamo, on Dec. 20.
Trial counsel provided both copies of the document to the Federal Bureau of Investigation to maintain as evidence in this case, the prosecutions emergency filing says.
The 42-page, emergency prosecution filing also noted that a search by the prison bureaucracy at Guantánamo determined that the military never cleared the 36 pages of commentary for release as non-legal mail. No member of the Prosecution or FBI has provided these documents to anyone outside of these organizations.
The prosecution filing had been under seal for more than two months.
The only public information about the emergency prosecution motion was in a March 7 email from the prosecution team to Sept. 11 victim families. It said the motion asks the judge to take action to ensure that the Commission process cannot be used to inappropriately disseminate propaganda.
At the prison, spokesman Navy Cmdr. John Filostrat on Monday night replied to a question of whether the prison staff asked the FBI to investigate the document this way: I am unaware of any investigation and wont get into ongoing legal proceedings, anyway.
Tuesday, a Pentagon spokesman said that while Martins did give the FBI the copy of the Mohammed document neither the chief prosecutor nor the prosecution team had any idea that an investigation was launched.
He gave it to the FBI to maintain as evidence in event that there could at some point be an investigation, said Army Lt. Col. Todd Breasseale, and in the event that it is determined that releasing [Mohammeds 36-page commentary] was unlawful.
The prosecutions February filing cites several instances of Mohammeds writings getting into the public domain that the prosecution found suspicious, including supposed letters from the alleged 9/11 mastermind to his wife via attorneys rather than International Red Cross messages.
Also they cited apparent correspondence between Mohammed and a British theology student that The Guardian wrote about in January.
Mohammeds attorneys said in the March 14 court filing that they had done nothing wrong in releasing those writings. Communications referred to by the government were transmitted in accordance with applicable rules, they said.
The defense lawyers wrote that they submitted Mohammeds commentary for review to the Chief Security Officer, Office of Special Security, consistent with the protective orders in this case.
The Chief Security Officer in turn submitted this document for review to relevant Original Classification Authorities [OCAs], including namely the Central Intelligence Agency [CIA], which determined that the Invitation to Happiness is Unclassified, after which it was released to various personnel involved in the Military Commissions, including prosecutors and personnel representing other defendants.
Mohammeds attorney, David Nevin, said Tuesday that his teams latest written motion again denied wrongdoing but an intelligence agency had declared the motion classified.
Separately, a lead case prosecutor, Ed Ryan of the Justice Department warned the judge against asking to question the FBI agents who visited a defense team member.
Your Honor is suggesting that you want to investigate an ongoing investigation. There are numerous government privileges that would be at stake, Ryan said at the hearing. I think the commission would be greatly mistaken to go down a road of trying to look inside an ongoing investigation being conducted by the Federal Bureau of Investigation if, in fact, one exists.