Lawyers for the 9/11 accused sparred with a federal attorney Thursday over whether FBI agents secretly questioning their staff stirred a potential ethical issue that paralyzes progress in the case. The judge didn’t resolve it.
Meanwhile, the alleged Sept. 11 plotters waged a silent protest by donning Palestinian attire. The alleged mastermind, Khalid Sheik Mohammed, wore a black checked headdress to court instead of his typical red one and his nephew, Ammar al Baluchi, traded his usual Kuwaiti headscarf for a Palestinian skullcap in what defense attorney James Connell called a “mute, silent expression of solidarity with the people of Gaza.”
David Nevin said his client Mohammed — who once bragged he was responsible for the Sept. 11 attacks “from A to Z” — was so disturbed by news accounts that he had written President Barack Obama directly, about Gaza and “a number of matters.” He called the headscarf switch “a statement of solidarity for the Gazans, for the Palestinians, about what is going on in Gaza right now.”
The lawyers for the five men accused of training, financing, and organizing the 19 hijackers of the Sept. 11 attacks explained the protest after a four-hour hearing. It was their only collective war-court date this week in the case that has been shadowed by the defense lawyers’ discovery that FBI agents had secretly been talking to some defense-team members.
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The defense lawyers want details of what the FBI was investigating in two separate probes, one involving the Mohammed team and another of the Ramzi bin al Shibh team. Without it, they argued, their ability to proceed in the case charging the five men with the murder of 2,976 people on Sept. 11, 2001 might have been ethically compromised.
Judge James L. Pohl, an Army colonel, has agreed that bin al Shibh should get a so-called conflict counsel to advise him on the potential of a conflict-of-interest on his team. But he has yet to decide how much detail of the FBI investigations that outside defense attorney should get.
Bin al Shibh lawyer Jim Harrington, who has lost or fired four team members over their association with the probe, said he too needs to know what was involved so he can decide if he or other team members are compromised.
For the Justice Department, special trial counsel Kevin Driscoll argued that the defense lawyers don’t need details of the probes, and can settle for assurances that in the view of the government they have no conflict. “The most salient point is that those investigations are closed and they have been closed now for some time,” he told the judge.
Mohammed’s attorney, Nevin, said it doesn’t work that way.
“It is an extremely extraordinary and singular thing that the FBI tries to invade my defense camp,” said Nevin, “and it’s astonishing to me, and I have no idea about why they did it.”
He elaborated after court, which is scheduled to resume Oct. 13, that “there are no good options until we have information.” Only once they know what was under investigation, he said, can three different parties decide whether there’s a conflict — the judge on whether to appoint independent counsel to advise Mohammed, something the judge has so far refused to do; Mohammed on whether to fire his attorneys; and the lawyers in consultation with their bar on whether they’re ethically compromised and would need to resign.
• The judge heard, but didn’t rule on, a request from one of the five accused, Saudi Mustafa al Hawsawi, to have aseparate trial
. Hawsawi wore a shawl that appeared to be adorned with the Dome of the Rock atop the Temple Mount in Jerusalem, Islam’s third-holiest site.
• The judge questioned whether he had the authority to create a paid civilian attorney slot on the case for a Mohammed attorney, Maj. Jason Wright, who resigned his Army commission rather than leave the case and go to judge-advocate-general school in the fall.
Wright leaves the Army in 12 days and wants to continue on the case, arguing to do otherwise would mean involuntarily severing their existing attorney-client relationship.
• The detention center spokesman, Navy Capt. Tom Gresback, was looking into whether a former CIA captive, known as a high-value detainee, could mail a letter to the president of the United States. The chief war-crimes prosecutor, Army Brig. Gen. Mark Martins, said separately he would look into it, too.
Miami Herald reporter Carol Rosenberg tweets @carolrosenberg