GUANTANAMO BAY NAVAL BASE—It is "highly unlikely" that the 9/11 military hearings scheduled to resume this week will do so amid new revelations in a report about treatment of detainees released by Senate Democrats last week and more recent accusations that the FBI enlisted a mole to spy on defense lawyers representing the accused terrorists, according to sources familiar with internal deliberations.
Hearings scheduled to take place on Monday were canceled Sunday evening, and it remains unlikely they will take place on Tuesday, meaning that the hearings would not resume again until February.
Following two closed-door sessions with Judge James Pohl, defense lawyers for the five accused 9/11 terrorists told reporters Sunday evening that a range of issues make it "highly unlikely" that the court will go into session—yet another delay to hearings that have already been beset by a range of difficulties.
These latest roadblocks include a hold-up in the investigation into accusations of FBI spying, as well as the detainees’ opposition to being handled by female guards as they are transferred to the courtroom.
While the issue of a newly released Senate Intelligence Committee report claiming that the CIA abused key detainees imprisoned here is certain to cast a cloud over future proceedings, the court had originally planned to discuss an alleged plot by the FBI to spy on the defense team.
However, a special Department of Justice prosecutor needs more time to fully litigate the issue. Consideration of court motions regarding the alleged spying plot will now not be heard until February, according to defense lawyers.
Lawyers for the alleged 9/11 architects are now seeking to compel the FBI to disclose the nature of its investigation and provide details about what the purported informant was reporting to them about.
Revelations that the FBI had sought to flip a key member of the defense first came to light in April and forced the years-long, much-delayed pre-trial hearings to grind to a halt. A special investigatory team was later established to investigate the claims and make determinations about what was taking place.
The defense maintains the spying situation has caused an insurmountable conflict of interest, particularly among lawyers representing 9/11 mastermind Khalid Sheikh Mohammed and financier Ammar al-Baluchi.
James Connell, al-Baluchi’s leader attorney, claimed that inappropriate government meddling has long marred the hearings. The defendants are tentatively expected to go to trial in 2015.
"The larger issue here is whether the government will abide by the rule of law in the military commissions," Connell told the Washington Free Beacon. "The infiltration of Mr. bin al Shibh’s defense team is merely the latest in a string of invasions, ranging from listening devices in attorney-client meeting rooms to defense emails being turned over to the prosecution."
The recently released torture report only adds more fuel to claims that the U.S. government has behaved inappropriately with regards to the Gitmo proceedings, Connell added.
Each of the accused terrorists has access to the Senate’s torture report and some of them are in the process of reading it, defense lawyers said.
"This week’s revelations in the torture report paint a picture of a government out of control, and the military commissions are no exception," Connell said.
The Senate’s report, which was heavily criticized by the intelligence community as misleading and incomplete, alleges that Mohammed and other high-level detainees were subjected to unauthorized interrogation techniques, including one procedure dubbed "rectal rehydration."
Brigadier General Mark Martins, the chief prosecutor, told reporters that the Senate’s disclosures would have no immediate bearing on the trials.
We "need to have it unfold before you and unfold in a sharply adversarial process," Martins told the Free Beacon. "We are undeterred. We are going to proceed for however long it takes."
The Senate’s report will not alter the way the 9/11 hearings are being conducted.
"Far from disrupting military commissions, as some observers have speculated, the Committee’s publication alters none of the rules of law or due process that will continue to govern each and every trial to its conclusion," Martins said in a separate statement provided to reporters on Sunday. "No statement obtained through the use of torture or cruel, inhuman, or degrading treatment is admissible into evidence in a military commission."
Meanwhile, a second controversy is brewing over the accused terrorists refusal to be handled by female guards due to religious restrictions on contact between men and women.
When a detainee refuses contact with a female guard, they are secured using a method described as "shackle and tackle," in which the prisoner is placed on the floor and locked into restraints.
"The reason that we essentially worked hard to resolve that today, instead of open court tomorrow, is because of the fear that some prisoners will be moved by women in contact positions and the resultant fear they’ll be forcibly removed from their cell," Connell said.
At issue is the prisoner’s right to be humanely treated and have their religious views respected, according to David Nevin, an attorney for Mohammed.
"The guys don’t have anything against women," Nevin said. "It’s being touched—it’s a violation of their religion."
While this had not been an issue in the past, "now, suddenly, it can’t happen any other way but that the women have to be touching them," Nevin said. "This violates a sincerely held religious belief."