War court grapples with Sept. 11 case communication control order

President Barack Obama reads briefing material before the Presidential Daily Briefing in the Oval Office Aug. 29, 2014 in this official White House photo.
President Barack Obama reads briefing material before the Presidential Daily Briefing in the Oval Office Aug. 29, 2014 in this official White House photo. THE WHITE HOUSE

In the summer of 2014, the man accused of orchestrating the worst terror attack in U.S. history wrote President Barack Obama an 18-page letter from inside his secret lockup called Camp 7 and asked his guards to mail it. They refused.

U.S. intelligence agencies have concluded that Khalid Sheik Mohammed’s letter contains no state secrets. Now, the question of whether his lawyers can simply drop the letter in the mail to 1600 Pennsylvania Ave. hangs in the balance of a larger issue confronting the Army judge handling the Sept. 11 trial.


Last month, prosecutors asked the judge, Army Col. James L. Pohl, to empower the prison staff of soldiers on temporary assignments to decide what anybody but the defense teams can read or hear from the pens and mouths of the alleged terrorists — the commander-in-chief included.

Defense lawyers call it a gag order. They argue the prosecution is seeking to unconstitutionally silence not the prisoners but their American, Pentagon-paid defense attorneys as they represent the alleged terrorists awaiting death-penalty tribunals.

The chief prosecutor, Army Brig. Gen. Mark Martins, calls it a necessary national security measure to plug a hole in prison communications prosecutors didn’t anticipate when they crafted a protective order for the judge’s signature in 2012. Defense lawyers are already prohibited from releasing information from their clients that the intelligence agencies classify; now the prosecution wants the jailers to weigh in on what other things, if any, can go beyond the attorney-client privilege. Alleged terrorists in federal detention “don’t have the expressive rights of just anyone,” the general argued.

‘What the government calls propaganda is what I do for a living.’ ▪  Defense attorney Jay Connell

No trial date has been set, and Obama will have moved out of the White House by the time a 9/11 jury is empaneled. But Martins argued the commander-in-chief shouldn’t get the letter. “Given that the President has a clemency function down the road, sending something directly to him is problematic statutorily for that reason.”

Defense lawyers urged the judge to not let the prosecution — or the prison — interfere in their advocacy roles. At issue, they reminded, was unclassified material that had already been cleared for release by U.S. intelligence agencies skilled in deciding what’s dangerous and what needs to be protected. When defense lawyers get unclassified material like the letter to Obama, they argued, it’s the attorney’s role to decide what is in the client’s best interest.

“What the government calls propaganda is what I do for a living,” attorney Jay Connell argued on July 25 in his continuing bid to spare his client Ammar al Baluchi conviction and, ultimately, military execution. “I try to convince people in a persuasive manner to act on behalf of an organization, a cause or a person’s goals.”

At times it has meant passing on a letter from Baluchi to the United Nations’ Special Rapporteur on Torture, Juan Mendez, asking him to inspect conditions at Camp 7, the clandestine Pentagon lockup. At times it has meant providing a captive’s first-person account of his CIA abuse for outside medical advice. In court, Connell displayed a checklist of CIA “enhanced interrogation techniques” filled out by his client. The document was unclassified so a court security officer allowed him to show it. The prosecution’s proposed new restrictions would prohibit the public from seeing it.

In a surprise at the court on July 25, Martins went further than his team’s original proposal of banning propaganda. Instead, he described a filing that was undergoing a review and possible redaction by intelligence agencies — and at this writing is still sealed on the war court website — that asked the judge to “prohibit defense counsel from sharing any of the accused’s mail with third parties, period. And to define third parties as everyone outside the defense team.”

Unusually, the prosecution sought the communication shutdown order in a supplemental court filing that essentially doubled down on a more discerning proposal. Defense attorneys called the order a retreat to Bush-era restrictions imposed before the U.S. Senate exposed aspects of the CIA “black site” program that clandestinely held and interrogated the accused in secret overseas prisons from 2002 to 2006.

It was one of two positions the prosecution took in court during the July two-week session that went further than their original case filings. In the other, case prosecutor Ed Ryan argued that a death-penalty defendant could voluntarily waive a statutorily required learned counsel. Pohl ultimately ignored the argument.

‘These are individuals who are in a law of armed conflict facility. Regulation of their speech is completely appropriate.’ ▪  Chief prosecutor Army Brig. Gen. Mark Martins

In the instance of the so-called gag order, the judge asked the prosecutor three times in a row, “What are you asking me to protect?” Under the current protective order, national security teams already review all the captives’ mail to their attorneys and stamp those that could damage national security “confidential” or higher — meaning the lawyers can’t distribute it.

The general did not answer. Earlier, he explained: “These are individuals who are in a law of armed conflict facility. Regulation of their speech is completely appropriate.”

Defense attorneys accuse the U.S. government of trying to impose prior restraint on their ability to pursue a fully meaningful defense for the five men awaiting death penalty tribunals. They are accused of directing, training and helping the 19 hijackers who killed 2,976 people on Sept. 11, 2001, with finances and travel. Prosecutors argue that the prison operated by revolving troops, mostly National Guard forces on nine-month tours, have a special interest that’s somehow different than the security interest of a range of U.S. intelligence agencies that examine each document to see if it contains state secrets or endangers security.

In the case of the alleged mastermind’s letter to Obama, the prosecutors wrote in a filing last year that it contained “inflammatory propaganda.” They urged the judge to let the prison staff decide whether it reaches the White House.

To which defense attorney Connell replied that “the problem with a propaganda review is that it means so much to so many different people.” He reminded that Obama himself has called the very existence of Guantánamo’s prison a propaganda tool in terror recruitment.

Carol Rosenberg: 305-376-3179, @carolrosenberg