A secret prison decision to seize un-networked, government laptops issued to the alleged 9/11 plotters threatened to stall progress toward trial Thursday as a prosecutor said something troubling occurred with the computers, whose hard drives are crammed with trial evidence and attorney-client communications.
The trial judge, Army Col. James L. Pohl, ordered the prison not to open or let anyone read the contents of the laptops. He ordered the devices taped shut and then sealed again in a container after prosecutor Ed Ryan announced that off-island security officials would be deciding what to do with the devices.
The surprising development, mostly unexplained in court, stirred the latest complaints by defense attorneys that the government was interfering with privileged attorney-client communications.
Pohl appeared surprised that the issue could not be resolved a day after the seizure. He warned Ryan that, if there’s a problem with the accused terrorists “having access to their material” in time to prepare for the next hearing, this could cause a delay. Ryan has been pressing the judge to set a schedule of deadlines toward jury selection in 2019.
Defense attorneys urged the judge to order the devices returned to them under an October 2013 attorney-client communications handling order that covers such seizures. Pohl declared himself unable to rule because Ryan said the issue was being handled off-island, and the prosecution would be filing more documents to explain.
“We will not be returning the laptops to any of the five accused, your honor,” Ryan announced after notifying the judge and defense lawyers of at least part of the problem in a classified filing.
“Ever?” the judge asked.
The prosecutor said a decision was being made elsewhere. “This has gotten a lot of people’s attention. In a hurry.” He also added, enigmatically, “There’s a very significant event that needs to be addressed.”
Two court participants said the issue had been described as alleged “tampering.”
The latest challenge to attorney-client confidentiality occurred Wednesday when guards at the secret Camp 7 prison seized the court-approved, non-networked laptops and hard drives issued to the accused Sept. 11 attack plotters to prepare for their death-penalty trials. In court, however, Ryan said the issue arose Monday, and did not involve “attorney-client privileged material.”
In court, attorneys for three of the accused plotters — Mustafa al Hawsawi, Walid bin Attash and Ramzi bin al Shibh — pointedly said that whatever the problem was, Ryan’s court filing made clear it did not involve their clients or their computers.
The attorneys for the alleged mastermind Khalid Sheik Mohammed and Ammar al Baluchi, his nephew and a self-described Microsoft-certified software engineer, said nothing.
Jay Connell, Baluchi’s attorney, said in court Wednesday that his team had just scanned all his client’s privileged documents, at the urging of the government, and put digital copies in Baluchi’s laptop. Then, Connell said, his Pentagon staff team shredded the hard copies, between 60,000 and 70,000 pages, including copies of hundreds of letters between defense lawyers and Baluchi.
After court, Connell said the seizure is “one step before invasion of the attorney-client privilege” — unless somebody outside the privilege had read documents on the laptop.
The development comes after three lawyers in Guantánamo’s other death-penalty case quit over an ethics issue involving a top-secret allegation of invasion of attorney-client privacy. Then Monday, the prison denied the Sept. 11 defense lawyers access to their traditional meeting site for the week, for a classified reason, before reversing itself after the judge inquired about the issue.
Earlier in the day, the chief prosecutor, Army Brig. Gen. Mark Martins, unsuccessfully tried to get the judge to pull the audio feed of court arguments to the public. Martins interrupted a defense attorney’s argument to call by-name witnesses who were involved in the secret Camp 7 soon after the men were brought there in 2006 from years in CIA Black Sites.
Martins never spelled out the problem but Pohl told him that whatever the general thought was classified in the defense lawyer’s presentation, was not.
The five captives are in their fifth year of pretrial hearings in the case that alleges they directed, trained or helped with finances for the 19 hijackers who crashed passenger planes into the World Trade Center, Pentagon and a Pennsylvania field on Sept. 11, 2001. Nearly 3,000 people were killed, and thousands more injured.
The case still has no trial date. The lawyers and judge are still establishing what secret evidence the defense lawyers can see from the captives’ three- and four-year stay in CIA custody.
Another cause for delay has been a long string of defense lawyers’ complaints about government interference into their privileged work — from the CIA having the clandestine capacity to mute court audio to FBI agents trying to turn defense team members into informants to the discovery of listening devices that looked like smoke detectors in legal meeting rooms.
One attorney likened Wednesday’s seizure of the privileged material to the government confiscating a defense team’s confidential filing cabinet of trial preparation material.