The judge overseeing the prosecution of five 9/11 terror suspects suspended preliminary hearings on Tuesday to allow the defense teams time to establish whether any of their past or current members had been secretly contacted by US law enforcement agencies.



Army Colonel James Pohl adjourned the troubled hearings until late Wednesday afternoon, a derailment caused by Monday’s revelation that the FBI attempted to get a classification specialist on co-defendant Ramzi bin al-Shibh’s defense team to become an informant.

Pohl also instructed the defense teams to tell him on Wednesday who else, if anyone, they believe the judge needs to hear from in the case – a potential prelude to the judge questioning the FBI directly.

Rather than considering the scheduled question of Bin al-Shibh’s mental competence to be tried, the wartime court – already repeatedly snarled in attempting to bring justice for the 9/11 attacks – is now preoccupied with the unexpected intrusion by the FBI into its proceedings.

Pohl rejected the prosecution’s request that the pre-trial hearings proceed as scheduled, thereby pre-empting the planned testimony of the commander of Guantánamo’s most secretive detention camp.

At issue is an apparent inquiry by the FBI into how an unclassified manifesto by accused 9/11 mastermind Khalid Sheikh Mohammed found its way to the media in January. Defense attorneys contend they violated no classification restrictions, and the recently discovered involvement of the FBI in investigating the lawyers has created a potential conflict of interest preventing them from adequately representing their clients.

“I think the commission would be greatly mistaken to go down a road to try to look into an ongoing investigation conducted by the Federal Bureau of Investigation” if such an investigation exists, argued Ed Ryan, a member of the prosecution team detailed from the Justice Department.

But the defense teams for the five defendants argued that they could not be sure that other members of the teams had not also been approached by the FBI, aggravating a persistent distrust the detainees feel toward their lawyers.



“My client is not here because he’s angry with me,” said Cheryl Bormann, a lawyer for co-defendant Walid bin Attash. Bormann explained that she could not return Bin Attash’s own writings to him out of concern that she could face an inquiry for disclosing privileged information, even to its author.

David Nevin, a lawyer for Mohammed, told the court that he had filed a motion on March 31 specifically denying any wrongdoing over disclosure of the manifesto, which was never a court document.

But Nevin said that “in the last 12 hours” before Tuesday morning’s session, he had been told his motion was actually considered classified, and his transmission of it over a government network “may be considered a spill.”

“The classification rules are specifically not to be invoked to avoid embarrassment and that is what's happening here,” Nevin said.

It is unclear how the FBI came to be involved. The prosecution repeatedly testified on Monday and Tuesday that it was unaware of any investigation of the defense attorneys, and the military task force that runs the detention center denied any knowledge as well. The FBI is declining to comment.

In March, as first reported by the Miami Herald, the prosecution requested Pohl “inquire of Mr Mohammad's defense team how the dissemination of the materials in question took place” and clarify his rules for handling such material. The motion noted that on December 20, the prosecution provided two copies of Mohammed’s manifesto “to the Federal Bureau of Investigation (FBI) to maintain as evidence in this case.”

Defense attorneys also implied that Joanna Baltes, an absent member of the prosecution team who recently became chief of staff to FBI deputy director Mark Giuliano, played a role in the FBI involvement, but did not present any evidence that she did. The FBI declined specific and repeated requests about Baltes.

Defense Department spokesman Todd Breasseale repeated that the prosecution “did not – not – know of any investigation.”



Brigadier General Mark Martins, the chief military commissions prosecutor, gave Mohammed’s “Invitation to Happiness” manifesto “to the FBI to maintain as evidence in event that there could at some point be an investigation and in the event that it is determined that releasing the [document] was unlawful because that is what prosecutors do when they receive items that may have evidentiary significance (as opposed merely to argument on motions),” Breasseale emailed.

But the apparent FBI investigation into the defense team has placed the 9/11 attorneys in what they described as an untenable position – albeit one disputed by the prosecution.

Nevin said if Pohl determines that the FBI had Mohammed’s defense team under investigation, he would either have had to resign from the case or Mohammed would need to decide to ignore Nevin’s apparent conflict between defending the accused terrorist and defending himself.

Ryan said determining a conflict even existed was premature.

“That does not translate magically into a conflict of interest whereby the interests of these lawyers is suddenly contrary to those of the defendants,” Ryan argued to Pohl.

Pohl’s Tuesday order instructs the defense teams to canvass themselves and figure out the extent of law enforcement or other government contact with team members by late Wednesday afternoon.

On Thursday, when court resumes, Pohl said he would entertain requests by the defense for any further steps, such as calling the two FBI agents who approached the defense classification specialist as witnesses – a move that would drag the military commission even deeper into an issue separate from the 9/11 trial that is central to its existence.

“If we can dispel the possibility our team is being investigated, I’ll be right up waving happily a flag over my head in celebration,” Nevin told Pohl.