FORT MEADE, Md. -- The FBI's alleged attempt to investigate members of the legal defense teams continued to derail the trial of five accused Sept. 11 co-conspirators at the Guantanamo Bay naval base on Tuesday.
Army Col. James Pohl, the judge in the case, put the military commission into recess until at least Thursday over the revelation that FBI agents had visited the home of a defense security officer last Sunday, after he returned from church. The unnamed security officer, a private contractor from SRA International Inc., works with detainee Ramzi Binalshibh's defense lawyers. The man was allegedly asked to sign an agreement that suggested he would provide information to the FBI on an ongoing basis.
The FBI agents allegedly asked the defense security officer about the publication earlier this year by The Huffington Post and Britain's Channel 4 News of an unclassified letter written by Sept. 11 mastermind Khalid Sheikh Mohammed. Prosecutors had previously asked the judge for an inquiry into how the document reached the media, but the prosecution team -- which includes the chief of staff to the deputy director of the FBI -- maintained they were unaware of the FBI probe until recently.
Pohl said Tuesday morning he would issue an order that any current or past members of the defense teams must disclose to their lead counsel whether they have worked with the FBI. He also gave members of the defense teams until 5 p.m. Wednesday to name the government officials or other individuals from whom they would like hear testimony about the FBI probe.
Defense lawyers for the Guantanamo detainees said that they were outraged about the FBI investigation and that it created further trust issues between them and their clients.
"It's not a matter to be trivialized, and I'm actually surprised that the prosecution is not more outraged about it," James Harrington, a civilian lawyer representing Binalshibh, told the court.
"Particularly if you haven't done anything wrong, it has a chilling effect to have the Federal Bureau of Investigation investigating you," David Nevin, lead counsel for Khalid Sheikh Mohammed, told the court.
Before Pohl's ruling, Ed Ryan, a Justice Department lawyer serving on the prosecution team at Guantanamo, said he could not participate in "an intrusion into what may be an ongoing investigation, of which I have no knowledge." He also warned that numerous government privileges could be at stake if the military commission investigated the activities of the FBI.
"I think the commission would be greatly mistaken to go down a road of trying to look inside an ongoing investigation being conducted by the Federal Bureau of Investigation, if, in fact, one exists," Ryan said.
"The FBI’s ill-advised attempt to turn a member of the defense team against its own is disgraceful," Lt. Col. Sterling R. Thomas of the U.S. Air Force, who is detailed to defend detainee Ammar al Baluchi, said in a statement after the hearing. "We look forward to a full inquiry by Military Judge Pohl."
"These men have plenty of reasons to suspect their defense teams already, and the government is simply trying to exacerbate that tension," said James Connell, civilian counsel for al Baluchi, in a statement. "The government has tortured these men, planted bugs in the attorney-client spaces, read their legal mail, and now attempted to recruit an informant from within a defense team. What is next?"
In an online post, Adam Jacobson of Human Rights First pointed to Pohl's questioning of Ryan, the DOJ lawyer, about whether he thought FBI agents would object to being called to testify as an example of why the military commissions are such a "train wreck."
"Needless to say, a federal judge asking the prosecution how things work would never happen," Jacobson wrote.
The story has been updated to include comments from defense attorneys Sterling Thomas and James Connell and human rights advocate Adam Jacobson.
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