Defense lawyer to Guantánamo judge: Secret program may be depriving 9/11 defendant of sleep

Attorney Jim Harrington for Ramzi bin al Shibh speaking to reporters at Camp Justice, the U.S. Navy base at Guantánamo in April 2014.
Attorney Jim Harrington for Ramzi bin al Shibh speaking to reporters at Camp Justice, the U.S. Navy base at Guantánamo in April 2014.

An attorney for the accused 9/11 plotter who has complained about strange overnight noises and vibrations in his prison cell for years told a military judge Sunday that the problem was back, and that it may be caused by a covert Pentagon program disclosed to the court just last week.

Death-penalty defender Jim Harrington raised the issue in a rare Sunday session of pretrial hearings in the Sept. 11 terror trial, seeking to delay a conflict question in favor of a forensic examination of what’s going on in Camp 7, Guantánamo’s most clandestine lockup, where former CIA captives are held.

Army Col. James L. Pohl, the 9/11 trial judge, refused the request, but not before he asked whether the noises and vibrations said to be experienced by alleged terrorist Ramzi Bin al Shibh were known to his Army guards?

Not necessarily, Harrington replied — it’s “a very, very sophisticated program.”

The exchange was the latest in the court effort to talk about things at the secret prison in public, without going into details.

The program was so clandestine that prosecutors knew about it but the judge didn’t — until last week. Defense lawyers were subsequently briefed as well, but are forbidden to discuss it publicly.

The Sunday session was called to answer a question by another alleged plotter, Walid bin Attash, on how Bin Attash might function as his own attorney in the complex conspiracy case. Last week, the judge, defense attorneys and prosecutors crafted a 24-page script — essentially a warning — that the judge would read if any of the five alleged terrorists decides to defend himself.

It was during that process that one defense attorney, Jay Connell, surprised the judge with a document revealing the existence of the program as a mysterious, complicating factor in self-representation.

But Bin Attash chose not to come to court on Sunday, and the judge turned to a different question: Whether Bin al Shibh’s legal defense team is burdened by an ethical conflict resulting from an 18-month FBI investigation of several things the lawyers did for their Yemeni client. The probe was closed last month, with no criminal charges.

Bin al Shibh did come to court Sunday. But Harrington argued that he was exhausted from the recent resumption of noises and vibrations, saying that they retraumatize the captive from torture he suffered during his 2002-2006 time in secret overseas CIA prisons. Bin al Shibh got to Guantánamo in 2006.

Unless he’s sleep deprived, Harrington said, Bin al Shibh is “perfectly competent in my opinion to make decisions and very sophisticated decisions on complex issues.”

Bin al Shibh’s claims have been a long-standing source of disruption of pretrial preparation. In December 2013, the Yemeni repeatedly interrupted the judge, complaining about sleep deprivation. Pohl ejected him from the court four times in two days, banishing him to a holding cell behind the court to watch the proceedings on a video feed.

Based on those disruptions, prosecutors sought a competency hearing to demonstrate, for the court record, that the Yemeni is sane enough to face trial with four other alleged conspirators in the Sept. 11, 2001, hijackings that killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon.

Bin al Shibh allegedly aspired to become one of the 9/11 suicide hijackers. But he couldn’t obtain a U.S. visa, so instead allegedly helped al-Qaida operations chief Khalid Sheik Mohammed organize the attacks from Hamburg, Germany.

The judge never did get to hold that hearing but ruled that, in the absence of anyone claiming Bin al Shibh wasn’t competent, he is.

At one point, the judge severed Bin al Shibh from the trial to address his issue separately in part because of his Camp 7 complaints. Prosecutors objected, and the judge restored the five-man trial. Now, apparently, the noises and vibrations problem has spread.

David Nevin, defending the accused plot mastermind Mohammed, offered cryptically: “My client has reported a similar occurrence.” The judge invited him to file a legal motion, to which Nevin replied, “There’s evidence out there we need to mine.”

Much of the day was spent with defense lawyers and the Department of Justice attorney haggling with the judge over whether the now-closed, 18-month FBI investigation of Bin al Shibh’s defense team amounted to a professional conflict of interest for the lawyers that the accused terrorist must waive. That debate continues Monday in court.

Carol Rosenberg: 305-376-3179, @carolrosenberg

The 2013 vibrations and noises complaint, here, and an occasionally redacted 18-page Aug. 3, 2015 supplement with a chronology of claimed episodes here.

Pentagon day-after transcript of the Oct. 25, 2015 hearing.