A military judge abruptly recessed the first 9/11 trial hearing of the year Monday after defense lawyers accused the FBI in open court of trying to turn a defense team security officer into a secret informant.
If true, the lawyers argued, attorney-client confidentiality might be compromised in the case that seeks to put on trial and execute five men accused of orchestrating the Sept. 11 attacks that killed 3,000 people in New York, Pennsylvania and at the Pentagon.
At issue, in part, was the publication in January of prison camp musings by the alleged 9/11 mastermind, Khalid Sheik Mohammed, by the Huffington Post and Britain’s Channel 4 website.
Defense lawyers alleged Monday that in at least one instance, two FBI agents enlisted a civilian on the defense team of accused plot deputy Ramzi bin al Shibh as a confidential informant.
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The FBI declined several requests for a comment.
The development seemed to stun the chief prosecutor, Army Brig. Mark Martins, who told the judge, Army Col. James L. Pohl, that he was unaware of the FBI activity. Martins urged the judge to at least temporarily ignore the issue and proceed with a scheduled competency hearing.
“This was thrown in our lap … by the United States government,” said attorney Jim Harrington, bin al Shibh’s death-penalty lawyer. “They’re the ones that did this, not us, and we tried to bring it to your attention as fast as we could.”
Harrington said two FBI agents arrived at the home of his team’s Defense Security Officer, asked him who gave news outlets the unclassified Mohammed writings and had him sign a non-disclosure agreement that appeared to draw him into a continuing informant relationship.
The agents also asked “open-ended questions” probing for evidence of wrongdoing by 9/11 defense lawyers, said Harrington. He chose not to name his team member, who was being suspended from the case for talking, but said he worked for the contractor SRA International.
Now, the defense lawyers said, they had to ask each of their team members if they had been similarly interviewed by FBI agents and told to keep it secret. Harrington added that Pohl needs to conduct a separate inquiry on whether an FBI probe of defense lawyers had a “chilling effect” on their obligations to zealously defend their clients.
The role of Defense Security Officers in the 9/11 case, one assigned to each of the five legal teams, is designed in part to guide team members, both lawyers and analysts, on what information should be blacked out in court filings — and what information can be released as unclassified. They have Top Secret security clearances and are privy to internal defense discussions and strategy.
Attorneys and observers had gathered at Guantánamo over the weekend for a hearing on whether bin al Shibh was mentally competent to face the death penalty trial. Neither prosecutors nor defense lawyers had argued he was not fit for trial but the prosecution sought the inquiry after the Yemeni had repeatedly disrupted the last hearing, in December, with complaints of sleep deprivation tactics at his secret prison camp.
The competency hearing never happened. Instead, the prosecution sought a closed hearing on the competency question with just the judge, excluding the defense. The defense asked the judge to abate the proceedings and order his own investigation of whether the FBI had breached attorney-client confidentiality.
Pohl agreed to meet unilaterally with prosecutors on a competency hearing question and resume open court Tuesday.
Details were still scant but contained in an emergency defense motion filed Sunday at 10 p.m., according to Martins. The document was still under seal at the war court under a procedure that gives U.S. intelligence agencies up to 15 business days to vet it.
But one section disclosed to the Miami Herald accused the prosecution of compromising the defense teams.
“Apparently as part of its litigation strategy,” it said, “the government has created what appears to be a confidential informant relationship with a member of Mr. bin al Shibh’s defense team, and interrogated him about the activities of all defense teams.
“The implications of this intrusion into the defense camp are staggering. The most immediate implication, however, is that all defense teams have a potential conflict of interest between their loyalty to their clients and their interest in demonstrating their innocence to FBI investigators.”
In court, defense lawyers told Pohl that the breach merited an independent inquiry — and that the five 9/11 accused needed additional, separate counsel not currently assigned to the case to advise them.
The hearings are being held at Guantánamo under a security framework that shields most information about the CIA prisons where the five men were held and interrogated before they got to the U.S. Navy base in southeast Cuba in 2006.
Only officers of the court with Top Secret security clearances specific to the Sept. 11 case are allowed to meet with the 9/11 accused. It typically takes months to get a clearance, meaning more hearing delays — if the judge agrees the accused now needs additional lawyers to advise them on the privilege issue.
An Amnesty International observer questioned who in U.S. government the judge could task to unpack the problem.
“They have to have a full investigation and find out how far it has gone. And the defendants have to have an independent counsel,” said Anne Fitzgerald, director of the research and crisis response program for Amnesty International. “But so many branches of the government have compromised themselves that it’s hard to know who’s left to conduct an independent investigation.”
Martins urged the judge to set aside the conflict question for a scheduled hearing on whether bin al Shibh is mentally fit to go on trial with Mohammed and three other Guantánamo captives accused of conspiring with al-Qaida and the 19 Sept. 11 hijackers to commit the mass murder.
If Pohl takes up the issue it would be the latest allegation of U.S. government monitoring of the relationship between the 9/11 accused and defense lawyers who have access to government secrets on condition they not disclose them.
Past hearings demonstrated that agents had planted listening devices in the rooms where the lawyers meet prisoners and that someone outside Pohl’s court could mute the audio feed to the public. Pohl had the external audio kill-switch disconnected and the military, which argued it had never listened in on attorney-client meetings, removed the meeting room listening devices.
A Pentagon spokesman had no immediate comment on the allegation of FBI intrusion.
But Army Lt. Col. Todd Breasseale, the spokesman, noted that the prosecution had not characterized as “a leak” the disclosure of the document Huffington Post called Mohammed’s manifesto. Rather, in a separate emergency motion filed by the prosecution March 3, Martins’ team was simply asking the judge to inquire “into the procedures by which the information was made available.”
It appears that Mohammed’s musings, called “Invitation to Happiness,” have been in circulation for some time. Several Sept. 11 case defense attorneys said Monday that it had never been classified, was not part of the war court record and that Mohammed’s Marine lawyer last year distributed cleared copies widely to both the 12-member prosecution team as well as all the defense attorneys.
“Mr. Mohammed wanted us to read it,” said Harrington. “He’d like the whole world to read it.”