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An American Affidavit

Saturday, April 19, 2014

Covert FBI inquiry rattles 9/11 tribunals By Matt Apuzzo THE NEW YORK TIMES

Covert FBI inquiry rattles 9/11 tribunals

WASHINGTON —  Two weeks ago, a pair of FBI agents appeared unannounced at the door of a member of the defense team for one of the men accused of plotting the Sept. 11, 2001, terrorist attacks. As a contractor working with the defense team at Guantánamo Bay, Cuba, the man was bound by the same confidentiality rules as a lawyer. But the agents wanted to talk.

They asked questions, lawyers say, about the legal teams for Ramzi Binalshibh, Khalid Sheikh Mohammed and others accused of terrorism who will eventually stand trial before a military tribunal at Guantánamo. Before they left, the agents asked the contractor to sign an agreement promising not to tell anyone about the conversation.

With that signature, Binalshibh's lawyers say, the government turned a member of their team into an FBI informant.

The FBI's inquiry became the focus of the pretrial hearings at Guantánamo this week, after the contractor disclosed it to the defense team. It was a reminder that, no matter how much the proceedings at the island military prison resemble a familiar U.S. trial, the invisible hand of the U.S. government is at work there in ways unlike anything seen in typical courtrooms.

“It's a courtroom with three benches,” said Eugene R. Fidell, who teaches military justice at Yale Law School. “There's one person pretending to be the judge, and two other agencies behind the scenes exerting at least as much influence.”

Thirteen years after 9/11, nobody has been convicted in connection with the attacks and, because of the FBI visit, a trial could be delayed even longer. But it was only the latest in a string of strange events at Guantánamo Bay that, coupled with the decadelong delay, have undermined a process that was supposed to move swiftly, without the encumbrances of the civilian legal system and its traditional rules of evidence.

Last year, as a lawyer for Mohammed was speaking during another hearing, a red light began flashing. Then the video feed from the courtroom abruptly cut out. The emergency censorship system had been activated. But why? And by whom? The defense lawyer had said nothing classified. And the court officer responsible for protecting state secrets had not triggered the system. Days later, the military judge, Col. James L. Pohl, announced that he had been told that an “original classification authority” — meaning the CIA — was secretly monitoring the proceedings. Unknown to everyone else, the agency had its own button, which the judge swiftly and angrily disconnected.

Last year, the government acknowledged that microphones were hidden inside what looked like smoke detectors in the rooms where detainees met with their lawyers. Those microphones gave officials the ability to eavesdrop on confidential conversations, but the military said it never did so.

“At some point, it just becomes silly,” said Glenn Sulmasy, a military law professor at the Coast Guard Academy who supports military trials for terrorism but said problems at Guantánamo Bay had undermined confidence in the system. “I don't think we're at that point yet, but at some point it just becomes surreal. It's like there's a shadow trial going on and we're only finding out about it in bits and pieces.”

The court has also been troubled by computer problems. A botched computer update gave prosecutors and defense lawyers access to the other side's confidential work. And the Pentagon acknowledged inadvertently searching and copying defense lawyers' emails but said nobody had read them.

“These things keep happening,” defense lawyer James Harrington said this week as he asked for an investigation into the FBI's activities.

The other instances seemed like government intrusion, Harrington said, but lawyers could not prove it.

“Here it really happened,” he said.

The FBI would not comment, and military prosecutors said they knew nothing about the investigation. But the FBI appears to be investigating how The Huffington Post got a hold of a 36-page manifesto that Mohammed had written in prison.

The government hopes to start the trial early next year, but it is not clear whether this issue will result in another delay. Harrington said he wanted Pohl to question FBI officials and determine whether anyone else on the defense team had been approached by or gave information to the government.

“It's just a horrible atmosphere to operate in,” Harrington said Friday. “It's built on a shaky foundation, and one thing after another happens. I don't see how anyone can have confidence in this process.”

Christopher Jencks, a Southern Methodist University law professor and a former military prosecutor, said he sympathized with the Guantánamo prosecutors, who appeared to have been just as surprised as defense lawyers by the appearance of the FBI and CIA in their cases.

“You have these military prosecutors who are normally empowered to own their cases. And they don't here,” Jencks said.

If this were any other country's system, Jencks said, “The reaction would be, 'Oh my gosh. What a kangaroo process.'”

President George W. Bush created the military tribunal system for suspected terrorists in 2001. Years of court challenges followed, and after the Supreme Court struck down the tribunal's rules in 2006, Congress hurriedly wrote new rules giving prisoners more rights. More changes followed in 2009, and the government says the process is far better and fairer now.

The 9/11 trial, if it occurs, will be the biggest test of that system. Six detainees in other cases have pleaded guilty before military commissions. Two others have gone to trial and been found guilty, but their convictions were thrown out by an appeals court.

Greg McNeal, a former adviser to the top Guantánamo prosecutor, said the military tribunal system was ripe for incidents like the one with the FBI because it is so new. The civilian system and the traditional military judicial system have well-established rules and precedents for handling issues that arise.

“Because it's new and different, they may have a sense that they can get away with things,” McNeal said.

He added, “There are interagency fights happening behind the scenes that have been going on for the past decade.”

The Obama administration had hoped to prosecute the 9/11 case in a New York criminal court. But it reversed course in the face of security fears and criticism that the government would grant constitutional rights to terrorists.

While the military tribunals have been plagued by delays, the department has successfully prosecuted several terrorism cases in civilian courts. Most recently, prosecutors in Manhattan won a conviction against Sulaiman Abu Ghaith, the most senior adviser to Osama bin Laden to be tried in U.S. civilian court since 9/11.

Attorney General Eric H. Holder Jr. noted that the New York case had proceeded from capture to conviction in about a year.

“It is hard to imagine this case being presented with greater efficiency or greater speed,” he said.

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