The judge in the Sept. 11 conspiracy trial huddled with prosecution and defense lawyers Thursday to discuss a secret Pentagon program that, until this week, the judge knew nothing about.
Defense attorney Jay Connell disclosed the existence of the program Tuesday when he tried to hand the judge, Army Col. James L. Pohl, a document in court. Connell said the judge should know what the document said as he was crafting a warning for any of the five alleged terrorists charged in the 9/11 attacks who might want to act as his own attorney.
The judge refused to take it, saying “It is a program I believe I have not yet been read on yet,” meaning some intelligence agency hadn’t authorized him to see it. Pohl likewise refused Connell’s offer to “double-wrap” the document and store it in the trial judiciary safe. “I don’t want to take custody of a document I’m not authorized to read,” the judge said.
Connell and prosecutors already knew about the program, from trial preparation — it’s cryptically called an “Alternative Compensatory Control Measure,” ACCM — but the judge and other defense attorneys did not.
From the public remarks, it was impossible to know what sort of state secrets the ACCM shields. The five men accused of plotting the Sept. 11, 2001 attacks were held for three and four years in secret CIA overseas prisons before their 2006 transfer to Guantánamo. Parts of that covert “Black Site” program are still classified. At Guantánamo, they are held at a similarly classified prison, Camp 7, a place so secretive the public can’t know what it cost or who built it.
To get the judge and legal teams up to speed, Pohl and other defense lawyers got secret briefings — a read-in, as it is know in intelligence circles — so they could discuss it at Thursday afternoon’s closed session to hash out if it was possible, or necessary, to discuss the program in public. The “read ins” began with the judge Tuesday night, continued throughout the day Wednesday and into Thursday afternoon.
Under the war court system for handling classified material, the public and the accused were removed from the courtroom so the lawyers could discuss the legal arguments each might make in open court. Court officials said the closed session would resume Friday afternoon.
The issue is particularly important this week as the accused 9/11 plotter, Walid bin Attash, a Yemeni in his mid 30s, decides whether to fire his attorneys and act as his own lawyer — in a system that does not let the accused terrorist see classified information in the case.
Unless Pohl rules otherwise, Bin Attash would be forbidden to know about the mysterious ACCM.
Pohl scheduled a rare Saturday session to address the self-representation issue. The judge ordered Bin Attash brought to court.
Bin Attash’s four co-defendants — including the accused Sept. 11 plot mastermind, Khalid Sheik Mohammed — were expected at the war court compound to hear the judge recite a script about how a CIA prisoner with no security clearance could exercise his war court right to function as his own lawyer.
In a separate development on Thursday, the last of the five Sept. 11 defense attorneys signed a memorandum of understanding on how to handle classified information in the case. Before the defense attorneys agreed, prosecutors were unwilling to share secret evidence and certain trial-preparation materials with the Pentagon-paid U.S. defenders.
Under any circumstances, the lawyers are forbidden to share classified information with the men awaiting death-penalty trials.
Several of the defense lawyers described the system as unethical although the chief prosecutor, Army Brig. Gen. Mark Martins, has said it is modeled after federal court classified information handling procedures.
No date has been set for the complex, five-man war crimes trial of the five men accused of orchestrating, financing and training the men who hijacked four aircraft and killed nearly 3,000 people at the World Trade Center, Pentagon and a Pennsylvania field on Sept. 11, 2001. The prosecutor is seeking their execution if they are convicted.
On Monday, the war court is expected to take up an ethical question: Whether the defense team of another alleged plot deputy, Ramzi bin al Shibh, has a conflict over an 18-month FBI investigation of team members. It ended recently with no criminal charges.