05/21/2014 08:07 pm ET Updated May 22, 2014

Guantanamo Defense Lawyers In 9/11 Trial Aren't Under FBI Investigation, DOJ Tells Court

Ryan J. Reilly / The Huffington Post

WASHINGTON -- The FBI isn't investigating any lawyers defending accused Sept. 11 plotters on trial at the Guantanamo military detention camp and has closed a probe of a non-attorney member of a defense team, the government said Wednesday.

The denial was made by a Justice Department lawyer in Washington in an unclassified filing with the Guantanamo military commission. The filing wasn't publicly available Wednesday because it was undergoing a security review. But Justice Department spokesman Brian Fallon said the filing states that "no conflict exists since no lawyers from the defense team are under investigation." Fallon continued:

In November 2013, the FBI had received information that a non-attorney member of Bin al Shibh’s defense team may have been involved in facilitating unauthorized communications with Bin al Shibh and unknown individuals located abroad. The alleged facilitation of these communications may have constituted a federal crime and compromised national security. Accordingly, the FBI gathered additional information. But the FBI Preliminary Investigation at issue is now closed. In addition, no defense counsel of record is under investigation by the FBI. Accordingly, no defense counsel suffers from any conflict of interest arising from a criminal investigation, and no inquiry by the Commission is warranted.

The statement left open the possibility that the FBI continues to investigate a non-attorney member of the defense team, even if that preliminary investigation has closed. The statement is unlikely to satisfy members of the defense team, who regularly raise objections in an untested military tribunal that has never handled a massive and complex terrorism trial in the way that federal courts have.

Last month, the revelation that FBI agents visited the home of a member of the defense team after he returned from church on a Sunday tossed the long-stalled pretrial hearings in the Sept. 11 case into disarray. Defense attorneys were outraged that the FBI would try to "introduce a Trojan Horse behind the wall of attorney-client privilege," and the matter ate up most of the week.

The government later clarified that the investigation was not related to The Huffington Post's publication of writings of Sept. 11 mastermind Khalid Sheikh Mohammed earlier this year, though that was evidently something the FBI agents discussed with the defense team security officer they visited.

The filing on Wednesday requested that Judge James Pohl deny a defense request to conduct a through investigation into the FBI's probe, and to stop other proceedings until the defendants have a chance to waive any conflicts created by the FBI investigation. Pretrial hearings in the Sept. 11 trial are scheduled to resume in Guantanamo next month.

Attorney General Eric Holder and FBI Director James Comey have previously declined to comment on the FBI probe. Holder has stated that the Sept. 11 defendants would already be on death row had the case had proceeded in federal court instead of in Guantanamo's military system.

UPDATE: 1:30 p.m. -- A Justice Department official told HuffPost the statement was intended to indicate that no members of the defense teams -- including lawyers and non-lawyers -- are currently the subject of an FBI investigation.



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