Attorneys for the men accused of setting up the Sept. 11 terror attacks say that their bedrock professional duty to their clients is being compromised by a prohibition against fully investigating the clandestine CIA prison network where the alleged terrorists were tortured.
The issue dominated this month’s pretrial hearings at the war court, with defense lawyers protesting to the judge that prosecutors are threatening them with criminal charges if they independently try to speak to CIA agents or operatives from the years immediately after 9/11.
The chief prosecutor, Army Brig. Gen. Mark Martins, described the restrictions as a national-security necessity — even though defense lawyers have Top Secret security clearances that allow them to know, but not disclose, classified U.S. intelligence. “The mere seeking of interviews with people — and wandering up and ambushing people at the Piggly Wiggly — is a serious thing,” he told the judge on Jan. 11.
Army Col. James L. Pohl, the judge, has yet to take a side. But the issue illustrates Pohl’s challenge of balancing due process with security concerns as he tries to move the complex, five-man death-penalty case to trial. The CIA interrogated the five men for years before they were charged with allegedly setting up the hijackings that killed 2,976 people in New York’s World Trade Center towers, at the Pentagon and in a Pennsylvania field on Sept. 11, 2001.
Defense attorneys cast it as an unethical, impossible instruction that is at odds with their professional obligation to not accept the government’s version of events. They want the judge to either order access to witnesses of their clients’ “torture and cruel, inhuman, and degrading treatment while undergoing interrogation,” or to dismiss the charges for government interference in the nearly 6-year-old case.
Martins condemned “the independent approach by the defense to try to ‘investigate’ — and become their own, you know, private attorney general, or whatever disembodied investigative authority they think they have outside the commission.”
Letting the defense attorneys “investigate” could endanger “sources and methods that relate to the kinds of things that brought the towers down,” Martins warned the judge on Jan. 10, without elaboration.
“A general in the United States Army just told you that the defense in a capital case should not be investigating,” criminal defense attorney Jay Connell declared moments later. Connell, the lawyer for defendant Ammar al Baluchi, the nephew of the alleged plot mastermind Khalid Sheik Mohammed, then paused to emphasize the point.
Judge Pohl: “I heard that, Mr. Connell.”
The conflict emerged from a Sept. 6 letter by a case prosecutor, Jeffrey Groharing. In it, he instructs defense lawyers to “make no attempt to locate or contact any current or former CIA employee or contractor, regardless of that individual’s cover status.”
Prosecutors have given defense attorneys classified CIA documents that the accused terrorists cannot see. The material contains no agents’ names, just codes for each person, and prosecutors won’t provide the defense lawyers with the key.
Groharing insists that only prosecutors can arrange for them to speak with the authors of those documents or the people whose actions are described, something Connell said in court he has sought through the prosecution — to no reply.
Connell also told Pohl that he has rejected Groharing’s letter and already has reached out to former agents, seeking to interview them in a secure setting. He then stopped himself, offering that perhaps he should “invoke my right to silence at this point.”
“A criminal prosecution necessarily includes a defense, and the core defense function is investigation,” Connell told the judge. “The position of the government today is mutually exclusive with a military commission that is adversarial in nature.”
An attorney for alleged plot deputy Ramzi bin al Shibh, Alaina Wichner, said after court that she found Martins’ remarks “shocking.”
“To threaten prosecution against the defense for conducting an investigation that we are obliged to do shocks the conscience,” said Wichner, a reservist in the Army’s Judge Advocate General Corps who started on the case in uniform and chose to stay on as a civilian. “Literally my heart sunk to my feet. We pride ourselves on not being North Korea or Russia or any other so-called legal system that does not let you challenge the government’s evidence.”
Martins also had suggested that defense lawyers who don’t heed his prosecutor’s notice might be charged with violating the Intelligence Identities Protection Act, of which conviction carries a maximum 10-year prison sentence.
At issue is not whether the public can learn the classified identities of agents; it cannot. The question is whether defense team members with Top Secret clearances can speak to agents out of earshot or without the participation of the prosecution to explore whether their testimony is needed in court.
Connell told Pohl that he had read the letter and the general’s remarks as possibly threatening Espionage Act prosecution; the Espionage Act can be prosecuted as a capital crime.
Defense lawyers say they need the most graphic details of the accused terrorists’ 2002-06 time in CIA custody — their physical abuse, including waterboarding and rough rectal treatment, sleep deprivation as well as climate, dietary and psychological manipulation — to present to a trial jury of military officers for two reasons.
First, to get the FBI’s early 2007 Guantánamo interrogations of the five defendants excluded from trial, as tainted by torture. Second, if the men are convicted, the defenders want to paint a picture of the CIA’s perverse treatment of them to argue that the United States lost the moral authority to execute them.
“We want to talk to the actual people who were there and saw it,” Mohammed’s attorney David Nevin told Pohl. “And we have a right, not only a right, but an obligation to do it. And it is not some odd species of desire on our part to do that. It is fulfillment of our obligation.”
The judge wondered aloud whether the prosecution intended in particular to prevent defense attorneys from unilaterally contacting already public, self-proclaimed participants in the agency’s “Black Site” program. Examples include former CIA Clandestine Service director Jose Rodriguez, author of “Hard Measures,” whom Connell said he already had contacted; former agent John Kiriakou, author of “The Reluctant Spy”; and psychologist James Mitchell, a former CIA contractor who waterboarded Black Site captives, as he explains in his 2016 book, “Enhanced Interrogation.”
Defense attorneys contacted by the Herald were unaware of the reason, if any, for Gen. Martins’ reference to Piggly Wiggly, a supermarket chain mostly located in southeastern states. Martins is no longer talking to reporters. He is, however, a scholar of U.S. military history, and the first CIA director, St. Louis businessman Sidney Souers, ran the supermarket chain years before Harry Truman chose him to run the spy agency as a successor to the World War II-era Office of Strategic Services (OSS).
Connell said that there are two other restrictions on the attorneys’ ability to investigate. One filing, numbered 441, is so secret that the public cannot know its name. The other, 525G, is entitled, “Government notice of classification guidance on what would constitute defense confirmation of classified facts.”
The prosecution has said it will never identify for the defense attorneys, even in classified fashion, the nations where the CIA hid their clients before their 2006 transfer to Guantánamo. Some sites, however, have been identified through leaks or international lawsuits. But a Nov. 17 directive signed by another case prosecutor, Clay Trivett, instructed defense attorneys that in overseas investigations, their teams “may not ask questions to a foreign national premised on the claim that that country hosted” a CIA prison.
After court one day, Connell said he interpreted it as forbidding “open-ended questioning” based on a hunch. “And nothing is scarier than prosecution for one’s mental belief,” he said.
Veteran Louisiana death-penalty defense attorney Denny LeBoeuf, a member of the team representing the alleged mastermind, called the prosecution’s instructions at odds with any normal U.S. judicial process.
“In no homicide case do I just wait for what the police give me, and settle for that,” she said last week. “You have to go out and investigate.”