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 Guantanamo 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 Shaikh Mohammed and others accused of terrorism who will eventually stand trial before a military tribunal at Guantanamo. 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, thegovernment turned a member of their team into an FBI informant.
The FBI’s inquiry became the focus of the pretrial hearings at Guantanamo 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 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 evenlonger. But it was only the latest in a string of strange events at Guantanamo Bay that, coupled with the decade-long 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 monitoringthe proceedings. Unknown to everyone else, the agency had its own button, which the judge swiftly and angrily disconnected.
Also 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 Guantanamo 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 onlyfinding 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 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 obtained 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.
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 Guantanamo 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.
Front Section, Pages 6 on 04/20/2014