The Sept. 11 trial judge and prosecutors struggled Wednesday to find a way forward out of the startling discovery that a former CIA linguist tasked to translate for an alleged 9/11 plotter earlier worked at a secret CIA prison.
Defense lawyers, who say their clients were tortured in the agency’s secret prison network, asked to take sworn testimony from the man.
They also asked the judge to halt the intended two-week pretrial hearing, the first since August, to conduct an inquiry and perhaps new background checks on defense team staff in the complex, five-man death-penalty prosecution. About 130 people, both military and civilian, work at the Office of the Chief Defense Counsel.
“This has so decimated any trust on this team,” said defense attorney Cheryl Bormann, her voice cracking, “we can't go forward.”
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Army Col. James L. Pohl, the judge, said he’d hear from prosecutors Thursday on the request to question the former CIA linguist who had been working temporarily for the team representing accused terrorist Ramzi Bin al Shibh since August. A new translator, who just got his security clearance on Friday, was flown in Tuesday from Miami.
Meantime, defense and prosecution attorneys traded accusations over how the contract linguist came to sit beside Bin al Shibh on Monday in a courtroom where four of the five accused 9/11 conspirators said they recognized him from their years of secret detention.
The chief prosecutor, Army Brig. Gen. Mark Martins, said twice — identically — that the assignment of the former CIA linguist to translate for a former CIA captive “in no way resulted from any action by any executive branch agency to gather any information regarding defense activities from any of the defense teams.”
His sealed filing went further, according to attorneys who read it, and accused defense attorneys of either failing to do their “due diligence” about the former spy agency linguist or of knowing that he’d worked for the CIA before Monday’s hearing.
War court Arabic language linguists come from a pool of names provided by approved Pentagon contractors. They require special security clearances that allow them to work with secret intelligence.
Bin al Shibh’s lead counsel, Jim Harrington, said after court that he and a co-counsel vetted the linguist in August, and he had no idea of the translator’s previous CIA work before the alleged terrorist disclosed it in court Monday.
“The problem is I cannot trust him because he was working at the black site with the CIA, and we know him from there,” said Bin al Shibh, a Yemeni accused of functioning as a 9/11 plot deputy.
Wednesday, the judge’s security officer twice censored sound from the court to the public when David Nevin, the lawyer for alleged 9/11 mastermind Khalid Sheik Mohammed was speaking. In one instance, the judge said, it appeared as though Nevin was about to spill secret information but didn’t. Yet the court never restored Nevin’s remarks to a transcript of the proceedings.
The prosecution wants the judge to investigate the defense by reading communications between some defense attorneys and the Pentagon office that provided contractors to the pool, according to defense lawyers who read the prosecution brief.
Bormann wants to investigate “every defense team member” past and present for undisclosed previous work, and told the judge the prosecution filing on the CIA linguist episode was an “out and out falsehood.”
Nevin asked the judge to suspend proceedings “until we can get to the bottom of this issue.”
The issue is the latest to beleaguer preparation for the trial of the five men accused of conspiring in the Sept. 11, 2001 terror attacks, and, as defense lawyers see it, fodder for an eventual motion to dismiss the case for outrageous government conduct.
It had already been sidelined by what defense lawyers called an FBI infiltration of their privilege by agents secretly questioning team members then having them sign non-disclosure agreements.
To solve that question, a Department of Justice attorney Fernando Campoamor-Sanchez, asked to meet only with the judge and a special independent counsel assigned to advise Bin al Shibh, Air Force Lt. Col. Julie Pitvorec. He wanted to exclude not only Bin al Shibh but his lawyers and the four other accused terrorists and their lawyers.
All objected, including Pitvorec, who said “at the heart of this lies the government investigation into the activities and the infiltration of the RBS defense team” — using an acronym for Ramzi bin al Shibh.
Then the judge said no, too.
It was the FBI snooping episode that set up this week’s CIA linguist scandal. Little is known about what the FBI was investigating in secret approaches and questioning of defense teams. But as a result, Bin al Shibh’s earlier translator lost his security clearance and his job.
They settled on a new permanent linguist, who didn’t arrive on this remote base until Tuesday.
In between, the temporary translator who worked at a CIA black site had been filling in since August, off and on, according to Harrington — and had met Bin al Shibh earlier.
But Bin al Shibh only disclosed in court Monday that he recognized the linguist from a secret prison where Bin al Shibh had been held captive before his arrival at Guantánamo in 2006. Accused accomplices Ammar al Baluchi and Walid bin Attash recognized him, too, as did Mohammed. The three were apparently seeing the translator for the first time at Guantánamo in court Monday.
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The Miami Herald guide to the Sept. 11 war crimes trial here.