A federal prosecutor sought to get the Sept. 11 war crimes tribunal back on track Monday by declaring in open court that the FBI doesn’t have spies planted in the defense teams of the five men accused of conspiring in the terrorism attacks.
“No, there is not any informant or mole in the defense camp,” Assistant U.S. Attorney Fernando Campoamor-Sanchez told the judge in the death-penalty trial of alleged 9/11 mastermind Khalid Sheik Mohammed and four accused accomplices.
At issue is defense lawyers’ discovery in April that FBI agents had secretly questioned a security expert on the team of Mohammed’s alleged deputy, Ramzi bin al Shibh, about defense activities — a development that defense lawyers say has compromised their capacity to mount a zealous, full case.
“I do have a reasonable fear. I am trimming my sails. I am pulling my punches,” attorney David Nevin told the judge, Army Col. James L. Pohl, on Monday as his client, Mohammed, sat nearby in a green camouflage jacket, his flowing beard dyed bright orange.
Nevin added that, in the absence of certainty of who was being investigated and what the FBI suspected, he had canceled a fact-finding trip to the Middle East.
While dry and peripheral to the terror attacks that killed 2,976 people on Sept. 11, 2001, the issue has brought trial preparation to a standstill because the U.S. Supreme Court has ruled repeatedly that if a defense attorney was burdened by a conflict of interest a conviction can be overturned.
For the hearing, the Justice Department dispatched a four-member legal team led by Campoamor-Sanchez, who argued that the FBI activity created no conflict of interest because the agents weren’t investigating defense attorneys, only questioning their support staff.
Defense lawyers, he said, should trust in the prosecution argument supported by a sworn FBI affidavit that the investigation that kicked off the controversy by questioning defense team members was closed.
Campoamor-Sanchez advised the judge he should rule without further inquiry by or on behalf of the defense lawyers. To allow the inquiry to continue, he said, would be to provide defense attorneys with fodder for an inadequate defense argument in the trial record in the event of a conviction.
The judge, Pohl, had signaled earlier that he was not persuaded by the civilian prosecutors’ argument — portions of it filed in secret.
On June 4, he ordered this week’s hearing. Pohl declared himself “concerned the submissions of the Special Counsel have not adequately addressed a number of issues raised by the Defense as to the individuals contacted by the Federal Bureau of Investigation or the scope of any investigation concerning these cases.”
Defense lawyers said in a series of interviews Sunday that they had uncovered four separate episodes of FBI questioning their staff members, in two possibly now closed investigations.
FBI agents questioned the staff members secretly with agents in at least one episode seeking a nondisclosure agreement about their probes — prompting defense lawyers to argue that the government was spying on their work. The investigations, as they see it, could be creating a chilling effect, and conflict of interest over whether they could adequately and zealously defend the five men awaiting death-penalty trials in the hijackings and attacks of 9/11.
Those questioned included a linguist on the team of the alleged mastermind, Khalid Sheik Mohammed, in January 2013; two former federal law enforcement officers working as civilian investigators on the teams of alleged deputy Ramzi bin al Shibh and Mustafa al Hawsawi in November, and Dante James, the classification specialist on the Bin al Shibh team, in April.
James then tipped defense attorneys off to the FBI activities, for the first time uncovering the existence of shadowy investigations whose actual targets have not yet been disclosed — prompting defense attorneys to tell the judge Monday morning that there’s suspicion and uncertainty in the 9/11 defense teams.
Only one defense lawyer declared himself untroubled by the FBI inquiry — Walter Ruiz, representing Saudi Mustafa al Hawsawi, accused of helping with the finances and travel of some of the Sept. 11 hijackers. Ruiz said although one of the team members questioned by the FBI was his civilian investigator, Thomas Gilhool, he had discussed what the FBI had done with both Gilhool and Hawsawi and concluded that, for his part, no conflict of interest exists.
Ruiz and Hawsawi want the judge to split off his prosecution from the other four men.
Ruiz told reporters after court Monday that a separate trial should let him more swiftly litigate several issues, notably a challenge to conditions at the secret prison camp where the Pentagon locks up former CIA captives.
Ruiz called his client’s captivity in the clandestine Camp 7 “pseudo isolation, which in long-term detention is sometimes sometimes considered torture” and lacking in family contact and adequate religious facilities.
He called it “tremendously embarrassing to our armed forces the manner in which we've conducted our detention” — and wants the war court judge to order the prison to move Hawsawi to a more humane detention facility.
At the U.S. Southern Command, which has oversight of Guantánamo detention operations, Army Col. Greg Julian said the military would not respond to the allegation.