GUANTANAMO BAY NAVAL BASE—The FBI could be forced to testify in the military war court at Guantanamo Bay regarding the nature of its investigation into defense lawyers for the accused 9/11 terrorists.
The proceedings came to sudden halt on Monday following revelations that at least two FBI special agents had attempted to recruit a member of the defense team as an informant last week.
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Defense lawyers for the accused leaders of the 9/11 terror attack argued that the revelations jeopardize the entire case and could force them to recuse themselves from the legal team.
News of the FBI’s involvement has completely derailed the hearings, the first at Guantanamo since December. The court has been placed into a recess and will not resume until Thursday at the earliest.
Judge James Pohl instructed the defense team on Tuesday afternoon to assemble a detailed order compiling information and testimony they would want from any FBI officials involved in the alleged investigation. At issue is whether defense lawyers violated procedures governing the release of accused 9/11 mastermind Khalid Sheik Mohammed’s personal writings.
Pohl additionally directed all current and past members of the defense team to reveal to head lawyers whether they too had been approached or interviewed by any federal agency, including the FBI.
The goal is to try to determine the extent of the FBI’s infiltration into the defense team.
Recently released court documents from February indicate that government prosecutors in the case provided the FBI with a package of Mohammed’s unclassified personal writings and musings.
The prosecution categorized these documents as evidence and then provided them to the FBI, according to the February 28 court filed first reported Tuesday morning by the Miami Herald.
Two copies of the Mohammed documents were provided to "the Federal Bureau of Investigation to maintain as evidence in this case," according to the filing.
The government is attempting to decipher whether the release of these documents by the defense adhered to the court’s rules.
The defense further alleged in open court that they might be under investigation for sending a related classified communiqué via an unsecure server.
A Defense Department official at Gitmo told the Washington Free Beacon that the prosecution "did not know of this apparent investigative effort of the FBI."
"The chief prosecutor [Brigadier Gen. Mark Martins] stated as much on the record Monday morning," said Defense Department spokesman Lt. Col. J. Todd Breasseale.
Breasseale confirmed that Martins did in fact provide Mohammed’s writing to the FBI.
"It’s particularly worth noting that while the Chief Prosecutor did give the [Mohamed writings] to the FBI, neither BG Martins nor the prosecution team had any idea that an investigation was launched," he said. "He gave it to the FBI to maintain as evidence in event that there could at some point be an investigation and in the event that it is determined that releasing the [manifesto] was unlawful because that is what prosecutors do when they receive items that may have evidentiary significance."
Breasseale emphasized, "the prosecutors in this case did not know of an investigation.
Pohl’s ruling is likely to complicate the proceedings, which have already encountered many delays. Now the military court is effectively attempting to investigate an ongoing FBI investigation.
He acknowledged in his ruling the likelihood that the FBI "very well may not want to cooperate" with the court’s investigation.
A security official for the defense team admitted to lawyers in recent days that he had been approached by two FBI special agents, one of whom was identified by name as Kelley Clark.
The defense team member then signed two non-disclosure agreements and committed to working with the FBI to identify possible wrongdoing on the defense’s behalf.
Defense lawyer David Nevin told the court Tuesday that he wants "the power of the subpoena to bring them [the FBI] to court" so that he can "question them."
Defense lawyers such as Nevin broadly maintain that the FBI involvement constitutes a conflict of interest that prevents them from properly defending their clients.
Several members of the defense team warned that the may have to resign as a result of what has taken place.
Revelations about the FBI’s investigation threw the proceedings completely off track.
A military commander from Gitmo’s highly secretive Camp 7 was scheduled to testify this week about conditions in the camp. However, that is now unlikely to take place.