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​Defense alleges FBI spying in 9/11 hearing at Guantanamo

Published time: April 14, 2014 23:22
Edited time: April 15, 2014 05:10
Khalid Sheikh Mohammed, (2nd from right) the alleged mastermind of the September 11 attacks, and Judge Pohl (right), October 17, 2012. (Reuters / Janet Hamlin)

Khalid Sheikh Mohammed, (2nd from right) the alleged mastermind of the September 11 attacks, and Judge Pohl (right), October 17, 2012. (Reuters / Janet Hamlin)

Defense lawyers for the 9/11 trial defendants at Guantanamo Bay have levied new allegations of spying by the US government in the case, claiming the FBI propositioned a defense team security officer to be a confidential informant.

A military judge quickly recessed the year’s first trial hearing in the case on Monday after defense lawyers claimed two FBI agents attempted to enter into an informant relationship with a civilian contractor on the defense team of the September 11, 2001 attack-plot deputy Ramzi bin al Shibh.

An emergency defense motion was filed late Sunday, according to the case’s lead prosecutor Army Brig. Mark Martins, who said Monday he was not aware of any FBI activity.

Only part of the classified document was offered to the Miami Herald.

“Apparently as part of its litigation strategy,” the motion said, “the government has created what appears to be a confidential informant relationship with a member of Mr. bin al Shibh’s defense team, and interrogated him about the activities of all defense teams.

“The implications of this intrusion into the defense camp are staggering. The most immediate implication, however, is that all defense teams have a potential conflict of interest between their loyalty to their clients and their interest in demonstrating their innocence to FBI investigators.”

The allegations, if proven true, could jeopardize attorney-client privilege in the case, the defense argued. Lawyers for all five defense teams have asked the judge, Army Col. James L. Pohl, “to conduct a separate inquiry on whether an FBI probe of defense lawyers had a ‘chilling effect’ on their obligations to zealously defend their clients,” the Miami Herald reported.

During the meeting in question, FBI agents reportedly questioned the bin al Shibh legal team’s Defense Security Officer about publication in January of supposed 9/11 mastermind Khalid Sheikh Mohammed’s unclassified personal writings. The agents wanted to know who gave access to Mohammed’s manifesto to the Huffington Post and Britain’s Channel 4 website.

In addition, the agents allegedly asked the defense officer “open-ended questions” about possible wrongdoing by 9/11 defense lawyers, according to attorney Jim Harrington, bin al Shibh’s death-penalty lawyer.

The FBI agents ultimately had the Defense Security Officer “sign a non-disclosure agreement that appeared to draw him into a continuing informant relationship,” the Herald reported.

Both the FBI and the Pentagon have refused to comment on the allegations.

The Defense Security Officer – thus far unnamed but who was reportedly working for contractor SRA International – works on bin al Shibh’s team as a guide to defense members on what government data must be blacked out in court filings and what information can be released as unclassified. Officers on all five defense teams have Top Secret security clearances and have access to the defense’s internal communications and strategy.

Amid the allegations, the 9/11 defense teams have also asked Judge Pohl for new outside, independent counsel in the trial. Given the framework of the secretive trial assigning such counsel is a time-consuming task. Information in the trial pursuant to the defendants’ imprisonment and torture-riddled interrogations before they arrived at the US military base at Guantanamo Bay, Cuba, in 2006 is highly protected. In addition, anyone privy to the case details must have a Top Secret security clearance.

“They have to have a full investigation and find out how far it has gone. And the defendants have to have an independent counsel,” said Anne Fitzgerald, director of the research and crisis response program for Amnesty International. “But so many branches of the government have compromised themselves that it’s hard to know who’s left to conduct an independent investigation.”

This is only the latest accusation of clandestine government interference with 9/11 defendants and their legal teams. Past hearings have shown that listening devices were planted in rooms where lawyers and prisoners met, and that someone outside the court had a kill switch that cut the closed-circuit broadcast feed of the trial when secret CIA prisons were mentioned.

Incensed, Judge Pohl ordered an end to the mysterious outside intervention.

"It is the judge that controls the courtroom," Pohl said in January 2013. "This is the last time ... any other third party will be permitted to unilaterally decide that the broadcast should be suspended."