In a mysterious move, the general in charge of war court prosecutions has appointed a pair of special Pentagon prosecutors to investigate defense teams’ handling of classified information in the cases of seven former CIA captives.
To appear as defense attorneys at the war court, lawyers must have Top Secret clearances that let them see classified information. At issue, according to defenders who are aware of the probe across several different cases, is whether some defense lawyers have seen Top Secret information beyond pretrial discovery officially provided to them by the prosecutors on a “need-to-know” theory.
“He’s looking to see if people obtained information they shouldn’t have because of its classification,” said Jim Harrington, defense attorney for Ramzi bin al Shibh, one of the five accused Sept. 11 plotters.
Harrington called the appointment “disturbing” in part because the chief prosecutor, Army Brig. Gen. Mark Martins, has assigned a former Sept. 11 case prosecution team member as one of the special prosecutors — Michael Lebowitz of the Department of Justice’s National Security Division.
Lebowitz, a major in the Virginia National Guard, served as a routine case prosecutor as recently as this year in the case of Khalid Sheik Mohammed and four other men accused as 9/11 conspirators. All five could face execution if they are convicted.
Martins wrote in a notice to the court that his special counsel are tasked “with regard only to issues arising under or connected with the Government’s request for Defense remediation of material obtained outside the discovery process.” In response to a reporter’s question last month, the general said that Lebowitz’ s prior service as a Sept. 11 case prosecutor shouldn’t be an issue because he no longer works on that case, and now has an obligation not to disclose to current prosecutors any privileged defense material he discovers in his new role.
Lebowitz was mobilized as a trial attorney from December 2009 to July 2014, according to his LinkedIn page, then went to the Department of Justice. Martins said in a series of notices to the court released this week on the war court website that Lebowitz left the case on June 24, 2016.
Lebowitz did not respond to an emailed request from the Miami Herald for comment. Martins identifies him as Army Maj. Michael J. Lebowitz in his assignment as special prosecutor, suggesting he’s carrying out his special counsel duties as an Army officer not a Department of Justice civilian.
Martins has assigned Lebowitz and another lawyer, Karen Hecker, as special prosecutors to similarly look into the issue in the cases of the alleged USS Cole bombing plotter, Abd al Rahim al Nashiri, and an alleged al-Qaida commander, Abd al Hadi al Iraqi.
Hecker, identified as a Pentagon employee, testified on mishandling of classified information at the 2007 court martial of a former Guantánamo prison staff attorney, and has served as a judge on the Air Force Court of Criminal Appeals.
In the USS Cole case, death-penalty defense attorney Richard Kammen called the assignment of a special counsel “highly unusual.” He said he planned to challenge the appointment, probably starting with “whether General Martins even has the authority to name special prosecutors.”
He said he might also challenge whether the two selected are “really as neutral and detached as they’re represented.”
In the Sept. 11 case filing, the general also designated Lebowitz as liaison to the judge between two divisions of the Department of Defense and Defense Intelligence Agency of “adverse information” related to a since-closed FBI probe of some 9/11 team members.
About the special prosecutor
Court records show that a military attorney recently assigned to investigate Guantánamo defense teams has come and gone from the 9/11 case throughout years of pretrial proceedings. Army officer Michael Lebowitz’s name appeared as a major on a Feb. 11 list of prosecutors and as a captain in an April 4, 2012, filing but not on a Nov. 30, 2015, list.