It was all sounding very cloak-and-dagger.
"I don't know what I don't know," claimed Cheryl Bormann, lead defense lawyer for Walid bin Attash, covered in a floor-length black abaya. "I don't know that those are the facts."
Bormann was referring to speculation Monday morning by some of the other defense attorneys in the case of the five alleged September 11 attack plotters. The lawyers have been trying to figure out who on their defense teams agreed to act as a spy for the FBI and is now lying about it.
"I know that special trial counsel filed a public filing along with an ex parte filing to you," Bormann said to the military commission judge, Col. James Pohl, referring to the Justice Department lawyers specially flown from Washington, D.C., to Guantanamo Bay, Cuba to respond to the fact that the FBI was secretly monitoring the 9/11 defendants' defense teams for some still-unknown reason.
"I don't know what the ex parte filings said," said Bormann, referring to government documents filed only for the judge to see. "You are in possession of much more information than I have."
What she does know, claimed Bormann in the Guantanamo Bay courtroom Monday morning, is that at least two but up to four people on various 9/11 defense teams were approached by the FBI, asked to inform on the actions of their defense teams, and told to pretend it wasn't happening. They were also told to lie about it if asked. At least one of those individuals remains unidentified.
As a result, the defense attorneys claim they've had to put off investigating aspects of their clients' cases to avoid giving case secrets away to the government. "We don't know if we're being monitored," said Bormann.
This all sounds eerily familiar. Last year, a series of hearings in the 9/11 case addressed whether the attorneys representing the five accused co-conspirators of the 9/11 case were being monitored by an unnamed US government agency after lawyers discovered that the rooms where they met with their clients were all secretly wired for surveillance.
Then, they found out that the courtroom's microphones were so sensitive they could capture communications between the attorneys and their clients in court -- and send those communications not only to the court reporter, but to an unknown censor monitoring the courtroom.
After that, it was the defense team's computer systems: turns out they weren't secure from prying eyes, and defense e-mails and internet searches could be (and in some cases were) monitored by the government as well.
Once again, the 9/11 case is stalling because of potential government misconduct. Now, defense lawyers insist a full investigation of what the FBI did, what it learned and who shared what information is necessary in order to know if they can continue to represent their clients.
"A full inquiry into what happened could resolve the problem," explained Khalid Sheikh Mohammed's lead defense lawyer, David Nevin, Monday morning. "But without that we can't know and I'd have to resign" from the case.
Defense lawyers say they're worried that they're under investigation for criminal conduct. The case against defense attorney Lynne Stewart, eventually imprisoned for sharing information from her terrorist client, has been "thrown in our face a half dozen times," Nevin said. "I would be delusional if I didn't have a reasonable fear about this."
The result, he said, is he's had to "pull his punches" in his client's defense. Nevins said he had to cancel an important investigatory trip to the Middle East after he learned about the FBI's investigation because "I feel I'm under scrutiny now."
James Connell, defense lawyer for Ammar al Baluchi, relayed to the court on Monday the difficulty of developing a trusting relationship with his client when the client believes his lawyer is being monitored. After seeing a declaration from a government agent that said "facilitating communications between a defendant and a third party may constitute a federal crime," Connell said he did not share an unclassified letter from his client with a witness he was interviewing, even though he believed sharing the letter would have been helpful to the case.
"My personal interest in avoiding criminal scrutiny . . . directly changed the way that I've investigated the case," said Connell. That "is the definition of a conflict of interest. "
Defense lawyers want Judge Pohl to unseal the secret documents the government filed in the case, which they believe detail the FBI's investigation. They also want the judge to hold a hearing with live testimony to determine who spied on whom and what was revealed.
Meanwhile, the Chief Defense Counsel for the military commissions wants to appoint new independent defense attorneys to represent at least some of the defendants until the question of whether there is a conflict has been resolved. All of these moves would delay the lengthy pre-trial proceedings in the 9/11 case even more. Although the September 11 terrorist attacks took place in 2001, 13 years later, the military commission case remains bogged down in pre-trial hearings over unclear military commission procedures, disputes over classified information and the lawyers' ethical obligations.
The prosecution, however, claims no additional delay is needed. At Monday's hearing, the lead prosecutor of a special team of lawyers sent from the Department of Justice in Washington to handle the sticky subject of the FBI investigation into the defense teams said the judge should just move on with the case.
The FBI has said "they're not aware of any information indicating any member of a defense team is currently under investigation by the FBI," said Assistant U.S. Attorney Fernando Campoamor Sanchez. As a result, he said, the judge should decide that as a matter of law, there is no conflict of interest. "That should end the inquiry."
Maybe, but even if there is no current open investigation, couldn't there still be a spy planted on the defense teams to gather more information? And what did the FBI do with the information it gathered before? How did the FBI investigation affect defense lawyers' actions in their clients' defense?
Plus, what about other government agencies? If the CIA or some other agency could wire the Guantanamo meeting rooms, listen to a microphone feed that captured attorney-client conversations and monitor defense teams' internet usage, then can the attorneys be sure their actions aren't being investigated by a government agency other than the FBI? The lawyers say they still don't know why they were being investigated, or what FBI agents may have learned.
Even if the attorneys were satisfied that the FBI isn't aware of any of its own agents conducting an ongoing investigation, how could that ever satisfy their clients' concerns?
As James Harrington, lawyer for Ramzi bin al Shibh, told the court on Monday: "We now have to represent to our client that we had a spy within our team for a number of months. We don't know what activities that spy did."
Will Harrington's client ever trust his defense team again? Should he? And if he can't, can he ever truly receive a fair defense?
Like so many of the questions raised over the years in this slow-moving Guantanamo military commission case, we may never know the answer.