Attorneys defending a Guantánamo prisoner charged in the 9/11 plot turned the tables on Tuesday and asked for restrictions on the way the CIA can use private information that defense lawyers generate.
Previous discussions of classified information in the Guantánamo war crimes tribunal have focused on defense lawyers' responsibility to safeguard information collected by the government.
But the pretrial hearing at the Guantánamo Bay U.S. Navy Base on Tuesday revealed concerns about information flowing in the opposite direction.
Defense lawyers said that without new limits, they could be co-opted as intelligence gatherers for the CIA, which reviews some of the defense teams' confidential internal memos to determine if the information in them is classified.
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"We need to avoid becoming one more source in their all-source analysis," said attorney James Connell, who represents defendant Ammar al Baluchi, an alleged al Qaeda money mover also known as Ali Abdul Aziz Ali.
Virtually every secrecy debate in the 9/11 case involves the CIA and the overseas prisons where it held and interrogated the five alleged al Qaeda conspirators for three or four years before they were sent to the Guantánamo Bay prison camp in Cuba in 2006.
The government maintains everything about that now-defunct program is top secret and that disclosure could jeopardize national security, although some details have leaked or been disclosed by the CIA itself.
Before investigating information gleaned from their clients in preparation for trial, defense lawyers must determine whether the information is secret. If it is, they cannot discuss it or try to verify it with anyone who lacks U.S. security clearances.
Such people include former Guantánamo prisoners who were held with the defendants, or foreign government sources who are privy to some details of their treatment.
Defense lawyers submit their internal investigation memos to the Defense Department's Office of Special Security, or OSS, for a classification review.
"OSS has told us that the vast majority of our information goes to the CIA," Connell said.
He asked the judge, Army Col. James Pohl, to order that those filings be "'compartmentalized," or walled off to prevent them from being circulated throughout the CIA or disclosed to the military investigators and prosecutors who are their courtroom adversaries.
"Otherwise it's simply a long route of sending my memo to the prosecution," Connell said.
Pohl seemed skeptical that he had authority to ask the CIA reviewers to sign a non-disclosure agreement. He has said repeatedly that he does not have authority to classify or declassify any information. Only the agency that classified it as secret in the first place can do that.
The issue was part of a far-ranging discussion on the handling of secret information in the case against the defendants, who could be executed if they are convicted of conspiracy, murder and other charges.
Four of the five defendants skipped Tuesday's court session. The one who showed up, Yemeni prisoner Ramzi Bin al Shibh, was allowed to leave after the lunch break, angrily accusing the guards of refusing to serve him a meal.
"This is one sort of psychological torture," Bin al Shibh told the judge.
A spokesman for the detention operation, Navy Capt. Robert Durand, said Bin al Shibh had been given a fresh meal prepared in accordance with Islamic dietary guidelines, but he had "complained that his lunch did not include condiments such as olives and honey."
The accused mastermind of the 9/11 plot, Khalid Sheik Mohammed, and his four co-defendants are accused of training and funding the hijackers who crashed four commercial jets into the World Trade Center, the Pentagon and a field in Pennsylvania in 2001, killing nearly 3,000 people.
Prosecutors want to start the trial in September 2014, but defense lawyers say it could be three years or more before they are ready. They will not receive most of the secret evidence in the case until the court resolves questions about how it must be handled.