9/11 Hearings Halt Over Spying Accusation

FBI agents accused of enlisting informant on defense team

United States Army Chief Circuit Judge Col. James L. Pohl
United States Army Chief Circuit Judge Col. James L. Pohl / AP
April 14, 2014

GUANTANAMO BAY NAVAL BASE—The 9/11 hearings came to a halt on Monday morning just thirty minutes after they had begun following accusations by defense lawyers for the accused terrorists that members of their team had been approached to participate in an FBI investigation.

The FBI is said to have enlisted at least one member of the defense to participate in their investigation into how a bundle of writing by accused 9/11 mastermind Khalid Sheik Mohammed were obtained by news organizations.

The accusation all but derailed the hearings as government prosecutors and Judge James Pohl scrambled to respond to the revelations that the FBI sought information on each of the defense teams via this informant.

Pohl ultimately ended the court session—the first here at the Guantanamo Bay Naval Base since December—in less than 30 minutes to meet with the government in a closed session this afternoon.

Proceedings are scheduled to resume tomorrow morning, though it is unclear if Pohl will continue to hear arguments about the new FBI spying accusations or an earlier motion aimed at determining whether 9/11 facilitator Ramzi bin al Shibh is mentally fit to stand trial.

A FBI special agent identified to reporters by defense lawyers as Kelley Clark is said to have approached a security officer for the defense on April 6 and asked him to sign two non-disclosure agreements. One other anonymous special agent also was involved.

The FBI was seeking to obtain information on possible instances of misconduct by the defense teams, as well as interactions they have had with their clients, reporters were told by Jim Harrington, a civil defense lawyer for al Shibh.

The FBI sought to create an "ongoing relationship" with this security officer, he said.

"We believe the FBI is the one that did the wrong from the beginning," Harrington said.

Defense lawyers further speculated that the Department of Justice could be involved in this effort to determine possible wrongdoing.

This development could delay proceedings for the foreseeable future as the judge considers how to deal with it.

A Defense Department official said that it appears FBI is seeking to discover the means by which Mohammed’s writings were released to the public. However, it remains unclear to them at this point whether this is a formal FBI investigation.

The Defense Department maintains that it did not prompt the FBI investigation into the release of Mohammed’s manifesto and was unaware of it until recently.

"As we are unaware of any investigation, any such assumptions involve speculation which I’m just not going to get into," Lt. Col. J. Todd Breasseale told reporters.

"It’s worth noting that the prosecution has not alleged misconduct on the part of the defense, with regard to the document attributed to Mr. Mohammad," Breasseale said. "Rather, the prosecution has requested that the judge clarify his order (an order that some in the Defense appear to interpret to provide a channel for delivery of non-legal mail that circumvents the [Joint Task Force] procedure for non-legal mail)."

Defense lawyers argued in court that the revelations of possible government penetration among their staff jeopardizes the entire trial and "goes to whether the court can continue anything right now," according to defense lawyer James Harrington.

"Obviously, to say this is a chilling experience for all of us is a gross understatement," Harrington told the court as it learned of the emergency motion’s existence.

The defense argues that they cannot competently defends their clients if they suspect that members of their team are either informants or possibly under investigation by the FBI.

"The conflict arises because if we are the subject of some inquiry or investigation by the FBI or some other government agency we have an interest in how that comes out, and the issue is who’s interests do we protect first: Ours or the client’s?" he told the judge.

Chief Prosecutor Gen. Mark Martins asked that the emergency motion be put on hold while the court addresses al Shibh’s mental competency, as originally scheduled.

Proceedings are slated to resume Tuesday morning, though it remains unclear in what capacity the trial will continue, if at all.