The US government’s troubled military trials of terrorism suspects were dealt another blow on Monday when proceedings were halted after an allegation surfaced that the Federal Bureau of Investigation turned a member of a 9/11 defendant’s defense team into a secret informant.



Judge James Pohl, the army colonel overseeing the controversial military commission at Guantánamo, gaveled a hearing out of session after barely 30 minutes on Monday morning, following the revelation of a motion filed by the defense stipulating that the FBI approached an unidentified member of the team during the course of an investigation into how a manifesto by accused 9/11 architect Khalid Shaikh Mohammed found its way to the media.

Defense attorneys argued the government plunged them into a potential conflict of interest, as they would need to potentially defend themselves against a leak investigation, risking their ability to put their clients’ legal needs ahead of their own.

They implored Pohl to investigate, and if necessary, assign their clients with new independent counsel to advise the defendants about the existence and implications of conflict of interest. That could be a lengthy process – potentially the next delay for a proceeding that has yet to get out of the pretrial stage nearly two years after the latest incarnation of the 9/11 military trials began.

“We have an impossible situation in terms of representing our client … on any issue,” said James Harrington, a civilian attorney for Mohammed’s co-defendant Ramzi bin al-Shibh in the case, which carries the death penalty.

“To say this is a chilling experience for all of us is a gross understatement,” Harrington said.

On 6 April two FBI agents approached the defense security officer assigned to bin al-Shibh’s defense team with a document that “in essence, seeks to enlist defense personnel” in an inquiry into the manifesto leak, said Walter Ruiz, an attorney for co-defendant Mustafa Ahmed al-Hasawi.

Harrington said the unnamed security officer, a contractor for the firm SRA International, had signed the document, which was written to indicate the start of an “ongoing” relationship with the bureau.

A defense security officer is a non-lawyer assigned by the commission’s convening authority to advise the defense team on the handling of classified information, among other issues. The officer would have had “unlimited access to our files,” Harrington said, although not to those of the other legal teams.

Cheryl Bormann, an attorney, for co-defendant Walid bin Attash, indicated that the officer signed the FBI document, and warned that she and her colleagues had no way of knowing if other members of the 9/11 defense teams had been similarly been covertly enlisted to inform on their colleagues. She and other lawyers said the question effectively paralyzed their ability to represent their clients.



“I cannot advise Mr bin Attash that there is conflict-free counsel now, because I quite honestly don't know that there is. I know I've done nothing wrong, but I can't vouch for anybody else on my team. I can't vouch for anybody else in this joint defense,” Bormann said.

Monday morning’s hearing was supposed to address bin al-Shibh’s competency to understand the pre-trial proceedings. Bin al-Shibh has repeatedly complained of “sounds and vibrations” in his cell at Guantánamo’s most secret detention facility that disrupt his sleep and concentration. Bin al-Shibh and his four co-defendants were in court on Monday morning, and did not issue any outbursts, which have disrupted previous hearings.

The chief prosecutor of the military commissions, army brigadier general Mark Martins, asked Pohl to proceed as scheduled.

Martins said he was not aware of the FBI approaching the defense team, a contention Harrington supported. The motion detailing the allegation, filed unexpectedly late Sunday night and first reported by Carol Rosenberg of the Miami Herald, was unsealed Monday, but a declassification review must proceed before it is yet available to the public. It is as yet not public which agency, if any, triggered the FBI’s involvement.

Harrington said one of the FBI agents who approached the contractor was named Kelley Clark. The defense attorney defended the Defense Security Officer as a “good man” placed in an impossible situation.

“We do not believe he did anything wrong. We believe the FBI is the one that did the wrong from the beginning,” Harrington told reporters after the hearing.

Defense lawyers implored Pohl to delay the pre-trial hearing and order an investigation into the FBI’s unexpected involvement in the defense team. Pohl ordered a secret session with the prosecution, apparently related to the competency issue and not the FBI, and an open session for Tuesday morning.

“This is more than just something where there's some circumstantial evidence where something that may have happened. Here it really happened,” Harrington told Pohl.

In January, the Huffington Post and Channel 4 in the UK published a 36-page manifesto by Mohammed, the first such statement from the alleged 9/11 architect to leak out during his 10 years in US captivity. According to a March letter Martins sent to 9/11 families, the prosecutor on 3 March requested Pohl order an inquiry “as to how this letter was released, and to take action to ensure that the Commission process cannot be used to inappropriately disseminate propaganda.”

Lieutenant Colonel Todd Breasseale, a Defense Department spokesman on detainee affairs, noted that “the prosecution has not alleged misconduct on the part of the defense, with regard to the document attributed to Mr Mohammed.” Breasseale declined to comment about which agency prompted FBI involvement.

Harrington was unaware what law the media acquisition of Mohammed’s manifesto would have broken. It was an unclassified document, not part of the court proceedings that are governed by a nondisclosure agreement, that was distributed to attorneys at Guantánamo late last year.

The possibility of the FBI enlisting bin al-Shibh’s Defense Security Officer as an informant on the defense teams follows on the heels of revelations and suspicions that attorneys’ communications are monitored at Guantánamo.

The Central Intelligence Agency was able to secretly mute commission courtroom proceedings in January 2013 when attorneys attempted to discuss the agency’s former off-the-books prisons.

In April 2013, over half a million defense counsel emails were inappropriately turned over to a Department of Defense agency, prompting Pohl to temporarily delay pretrial hearings in the case of Abd al-Rahim al-Nashiri, the accused organizer of the deadly 2000 USS Cole bombing.

In December 2013, Vocativ reported that a system at Guantánamo called RedWolf surreptitiously intercepts and records phone, email and Voice Over Internet Protocol communications. The US Southern Command denied violating the confidentiality of attorney-client conversations.

Ruiz said that the new indication of secret FBI involvement in defense counsel raised a concern “about the privilege and the confidentiality of our communications.”

Even before the FBI allegation arose, the multitude of pre-trial motions had already backed up the military commission for the 9/11 defendants. James Connell, a lawyer for co-defendant Ali Abdul Aziz Ali, told reporters on Sunday afternoon that he was “no longer confident” that the military trial could begin in 2016.

The five 9/11 co-defendants have waited years for their trial to unfold. Most were taken into secret CIA detention in 2002 and 2003 before being sent to Guantánamo in 2006. A 2008 war-crimes trial was aborted, as was the Obama administration’s 2009 plan to try them in civilian court in New York. The co-defendants were arraigned in 2012.

Karen Greenberg, the director of Fordham University Law School’s Center on National Security, said the alleged FBI involvement demonstrated the superiority of federal civilian courts over the military commissions as a venue for the 9/11 trial. “It's hard, if not impossible, to imagine a federal court judge, allowing such a violation to occur in a federal court prosecution,” Greenberg said.

Harrington told reporters after the hearing that the FBI may have jeopardized an already tenuous trust that the 9/11 legal teams have built with their detained clients.

“If you’re one of the detainees, you say, ‘Now they can spy on my lawyers, and spy on someone on the lawyers’ team and get information on the lawyer, how can I possibly trust the lawyer, or any lawyers?’ That’s a valid question,” Harrington said.