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Sunday, June 24, 2018

By Carol Rosenberg, The Miami Herald

GUANTANAMO BAY NAVY BASE, Cuba — A military judge abruptly recessed the first 9/11 trial hearing of the year Monday after defense lawyers accused the FBI in open court of trying to turn a defense team security officer into a secret informant.

If true, the lawyers argued, attorney-client confidentiality may have been breached in the case that seeks to put on trial and execute five men accused of orchestrating the Sept. 11 attacks that killed 3,000 people in New York, Pennsylvania and at the Pentagon.

At issue, apparently, was the publication in January of prison camp musings by the alleged 9/11 mastermind, Khalid Sheik Mohammed, by Britain’s Channel 4 website and the Huffington Post.

Defense lawyers alleged Monday that in at least one instance, two FBI agents enlisted a civilian on the defense team of accused plot deputy Ramzi bin al-Shibh as a confidential informant.

The FBI had no immediate comment.

But the development seemed to stun the chief prosecutor, Army Brig. Gen. Mark Martins, who told the judge, Army Col. James L. Pohl, that he was unaware of the FBI activity. Martins urged the judge to at least temporarily ignore the issue and proceed with a scheduled competency hearing.

“This was thrown in our lap … by the United States government,” said attorney Jim Harrington, bin al-Shibh’s death-penalty lawyer, after other civilian defense counsel told the judge that a defense security officer on the bin al-Shibh team had been questioned by two FBI agents and signed a non-disclosure agreement.

Now, the defense lawyers said, they had to ask each of their team members if they had been similarly interviewed by FBI agents and told to keep it secret.

The role of defense security officers in the 9/11 case, one assigned to each of the five legal teams, is designed in part to guide team members, both lawyers and analysts, on what information should be blacked out in court filings — and what information can be released as unclassified. They have Top Secret security clearances and are privy to internal defense discussions and strategy.

Attorneys and observers had gathered at Guantanamo over the weekend for a hearing on whether bin al-Shibh was mentally competent to face the death penalty trial. Neither prosecutors nor defense lawyers had argued he was not fit for trial, but the prosecution sought the inquiry after the Yemeni had repeatedly disrupted the last hearing, in December, with complaints of sleep deprivation tactics at his secret prison camp.

The so-called competency hearing never happened. Instead, the prosecution sought a closed hearing with just the judge, excluding the defense. The defense asked the judge to abate the proceedings and order his own investigation of whether the FBI had breached attorney-client confidentiality.

Pohl agreed to meet unilaterally with prosecutors on a competency hearing question and resume open court Tuesday.

Details were still scant but contained in an emergency defense motion filed Sunday at 10 p.m., according to Martins. The document was still under seal at the war court under a procedure that gives U.S. intelligence agencies up to 15 business days to vet it.

But one section disclosed to the Miami Herald accused the prosecution of compromising the defense teams.