From Tragedy to Farce

Such was the verdict of the Miami Herald’s editorial board on April 19, when it considered what it termed “a series of jaw-dropping revelations and rulings” from Guantánamo’s military commissions.

On Monday, April 14, attorneys for a defendant in the 9/11 case revealed that the FBI had interrogated a Defense Security Officer (DSO), and required him to sign a confidentiality agreement that established a “special relationship” with the bureau. According to Carol Rosenberg of the paper, Judge Pohl, who presides over both the 9/11 and the Nashiri capital prosecutions, abruptly recessed the first 2014 hearing in the 9/11 case, after defense lawyers accused the FBI of “trying to turn the defense team security officer into a secret informant.” One defense lawyer described how two FBI agents had arrived at the officer’s home, and asked who gave news outlets the unclassified prison camp musings of 9/11 defendant Khalid Sheikh Mohammad (KSM). Counsel told Pohl how the agents also asked “open-ended questions” probing for evidence of wrongdoing by 9/11 defense attorneys. According to a leaked portion of the motion filed by such attorneys under seal, the most immediate implication of the FBI’s actions “is that all defense team members have a potential conflict of interest between their loyalty to their clients and their interest in demonstrating their innocence to FBI investigators.”

In response, Judge Pohl issued an Interim Order directing any defense team member contacted and/or interviewed by the FBI or other government agency concerning any defense-related matter to disclose such to lead defense counsel, irrespective of any non-disclosure agreement signed. The court also appointed a Special Trial Counsel to investigate in behalf of the government. Such counsel filed a preliminary report on April 21 stating that, contrary to the impression of defense counsel, the FBI is not investigating the disclosure of KSM’s writings to the media. The actual purpose of the investigation was described by counsel in a separate filing provided only to Pohl, so it remains unknown to us. Further, the FBI had taken steps designed to insulate persons involved in the investigation from the 9/11 case’s prosecution team.

Matt Apuzzo of The New York Times wrote a front-page piece titled “Covert Inquiry By F.B.I. Rattles 9/11 Tribunal” on April 19, stating that the FBI’s inquiry “was a reminder that, no matter how much the proceedings at the island military prison resemble a familiar American trial, the invisible hand of the United States government is at work there in ways unlike anything seen in typical courtrooms.” He spoke to Yale Law’s military justice professor Eugene Fidell, who told him: “There’s one person pretending to be the judge, and two other agencies behind the scenes exerting as least as much influence.” He was referring, no doubt, to the FBI and the CIA.

I’ll write about Judge Pohl’s ruling concerning the CIA in a future post.

Charles R. Church

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