Who’s listening? Sept. 11 lawyers ask if intelligence agencies are spying on them

Lawyers for the accused Sept. 11 plotters on Tuesday asked for an investigation into whether government spy agencies are eavesdropping on them and their privileged conversations with their clients.

The five teams of attorneys and judge, Army Col. James L. Pohl, devoted a chunk of the morning to discussing an alphabet soup from the intelligence world — CIA, FBI, NSA, FISA — while a prosecutor was mostly mute, saying it didn’t merit a moment of the court’s attention.

At issue is the ability of lawyers to meet, plan and confidentially hear from the accused terrorists — who spent years in CIA secret prisons — about “the private, most secret and most terrifying moments of their life,” said Air Force Capt. Brian Brady, defense attorney for alleged Sept. 11 plot deputy Walid Bin Attash.

Defense lawyers want the judge to order prosecutors to find out if any U.S. intelligence agencies have been listening in on their meetings with their clients, phone calls and conversations, or reading their email. They also want to know if any of them are subject to warrants from the super-secret Foreign Intelligence Surveillance Act Court (FISA).

“If this were a normal case, that would be remote. I would expect you to laugh me off the podium,” Brady said. “This is the 9/11 case.”

He offered a list of intrusions that have bedeviled progress in the mass murder trial — a CIA censor remotely muting sound from the court, FBI spying on defense teams, attorney-client meeting room smoke detectors that turned out to be listening devices. “This is not the defense on a fishing expedition for something that hasn’t happened before,” he said.

Lead case prosecutor Ed Ryan replied that his team has seen no evidence of surveillance. His side had no obligation to search for the information and “no intention to divert public resources to do so,” he said. It has “no logical or legal relevance to these proceedings.”

The case, he added, was about the terror attacks by suicide hijackers that killed 2,976 people on Sept. 11, 2001, and the investigation that followed. Five men, led by alleged mastermind Khalid Sheik Mohammed, are accused of conspiring in those attacks. They could be executed if they are convicted.

Ryan urged the judge to steer clear of what the U.S. intelligence agencies may be doing. The alleged terrorists’ attorneys, he said, “are saying to you, ‘Make the government go and invade other areas of the government who are doing their job.’ ”

Ryan’s response animated the more typically laconic defense attorney, James Harrington, who represents alleged Sept. 11 plot deputy Ramzi bin al Shibh. His defense team was gutted in 2014 and 2015 after he discovered that a non-attorney member had turned informant for the FBI after another was being recruited.

“This is not idle speculation,” said Harrington, reminding that he had uncovered “a snitch operating in my team, taking private attorney-client documents and giving them to the FBI.” After that, the Bin Attash defense team got a government contract linguist who worked in the CIA Black Sites.

Harrington urged Pohl to appoint a special investigator to determine if government intelligence agencies were spying on the Sept. 11 defense teams. Such an investigation is at odds with the interests of Chief Prosecutor Army Brig. Gen. Mark Martins and his team, Harrington said.

Any confirmation, Harrington said, would lead to a charge of outrageous government conduct, and a request to dismiss the case — something the prosecution would not want. Also, he said, an investigation might unearth information about defense strategy — something the prosecution should not know.

At one point in the argument, prosecutor Ryan remarked that there was a certain “irony” in the argument advanced by Brady, who was making his first at the war court. His client, Bin Attash, has been so estranged from his Pentagon-paid lawyers that he has relegated the entire team to sit at the back of the national security courtroom.

This story was originally published March 21, 2017 at 6:57 PM with the headline "Who’s listening? Sept. 11 lawyers ask if intelligence agencies are spying on them."