What is clear is that it will continue to delay progress in the case of the five men accused of masterminding the September 11, 2001, terrorist attacks. Thirteen years after those attacks, the case remains stuck in pre-trial procedural hearings at the Guantanamo Bay detention center.
Lawyers representing the accused told the military commission judge at Guantanamo Bay this week that due to the mysterious FBI investigation, which involved an attempt to turn at least one member of one defense team into an FBI informant, they all now fear they operate under a cloud of suspicion that hampers their ability to zealously represent their clients, as their ethical obligations require. Government prosecutors, meanwhile, say the defense lawyers have no right to know why the FBI attempted to infiltrate one or more of the 9/11 case defense teams, and that the case should proceed as usual.
On Thursday morning, prosecutors specially appointed by the Department of Justice to handle this issue insisted the court need not investigate further. The FBI investigation has been closed and "referred to the Department of Defense" said Kevin Driscoll, one of the special prosecutors sent from Washington, D.C. to Guantanamo. There is no open investigation, he said, and no longer any "moles" planted on their teams to spy on them, so defense lawyers' "subjective fear of investigation" is not grounds for further inquiry by the court.
In July, military commission judge James Pohl issued a ruling essentially agreeing with the government, finding there was no conflict of interest created at least with regards to four of the five defendants. He said it was less clear in the case of one defendant, Ramzi bin al Shibh, whose legal team discovered that the FBI had attempted to turn its security officer into an informant, and that the potential conflict in his case was being investigated. Judge Pohl in July ordered that bin al Shibh be tried separately. On Wednesday, he reversed that ruling at the government's request.
On Thursday, it was defense lawyers' turn to ask the judge to reverse himself. Lawyers for Khalid Sheik Mohammed and Ammar al Baluchi insisted further investigation was needed to determine whether the FBI questioning of defense team members had created a conflict. They've asked the government to turn over information about who and what the FBI was investigating. The government has refused.
David Nevins, lead counsel for Khalid Sheikh Mohammed, said Thursday that the FBI's claim it was no longer conducting a secret investigation that it still refuses to speak about wasn't reassuring. For one thing, he said, the government in the past had said it could not promise the FBI wasn't investigating anyone on any of the defense teams because it didn't have all of the team members' names and dates of birth. How, asked Nevin, can defense lawyers now be sure that whoever checked the FBI database could even access all open investigations? That's particularly a concern here because the government has suggested that this investigation was classified.
Until the lawyers know who was being investigated and why, said Nevin, he can't be sure he or his team are not under surveillance or at risk of future prosecution, regardless of what prosecutors now say. As a result, he said, he's had to "pull his punches" and "trim his sails" in investigating his client's case. That, he explained, creates a conflict of interest. Defense attorneys are ethically obligated to zealously represent the interests of their clients. They say the fear of prosecution by the FBI for defense-related activities inhibits them from doing that.
Nevin told the court that people are leaving his defense team due to the the threat of an FBI investigation, and that these departures "have strained our relationship with Mr. Mohammed significantly." He added that the failure to investigate FBI interference could lead to later defense motions to reverse the verdict based on ineffective assistance of counsel.
"The problem here is that the government made a decision to invade our defense teams," said Nevin. "They created this problem."
James Connell, who represents defendant Ammar al Baluchi, echoed Nevin's concerns. Even if the FBI says it is not investigating defense lawyers now, said Connell, the commission should take "a realistic approach that takes history into account" and not a one-time snapshot of the situation. In the past, defense lawyers have discovered that their computers were searchable by government agents, that the CIA could listen to attorney-client conversations in the courtroom, and that rooms where they meet with their clients at the Guantanamo Bay detention facility had all been wired for surveillance. Each time, the government denied it was using those capabilities.
Judge Pohl declined to rule Thursday on whether he would reverse his earlier ruling and require the government to provide more information about the FBI investigation. He is expected to next take up the matter in military commission sessions scheduled for mid-October. There has not been a trial date set in the case.