THE BLOG
10/16/2014 06:11 pm ET Updated Dec 16, 2014

Secret Order Cancels Guantanamo Hearing on FBI Spying -- Government 'Transparency' in Action

I really hope family members of victims of the 9/11 attacks weren't planning on attending the hearings scheduled at Guantanamo Bay this week. It's bad enough that observers who planned to travel to Cuba to watch federal prosecutors try to explain why the FBI was spying on U.S. military defense lawyers had their travel plans cancelled. But it would be completely demoralizing to someone who suffered personally from the heinous mass murders that took place thirteen years ago to find that once again, all efforts to bring the five alleged perpetrators to justice had stalled, and once again, no one's allowed to know why.

The judge's order cancelling this week's hearings remains under seal.

This is just the latest setback in the 9/11 prosecution odyssey, which also serves as Exhibit A of the colossal failure that is Guantanamo Bay. While the government has successfully prosecuted nearly 500 people on terrorism charges in federal courts since 9/11, only six military commission convictions have been upheld. The Pentagon said a 64-minute Guantanamo hearing in September cost the government nearly $150,000. The Guantanamo prison itself costs the U.S. government more than $443 million annually to operate -- more than $2.9 million per detainee.

The hearings this week were supposed to determine the consequences of the FBI's attempt to infiltrate at least some of the 9/11 defendants' legal teams, apparently to investigate an alleged crime. The government has never indicated what that crime was, or why it thought it could investigate the legal teams defending clients charged by the same government without violating the defendants' rights to attorney-client confidentiality, and creating a massive problem for the case. All the government has said so far is that its investigation is closed, so there's nothing to worry about.

Defense lawyers for the five accused plotters of the September 11 attacks aren't buying it. At previous hearings, they've said they need to know more about who and what the FBI was investigating, which members of the defense teams were questioned, and what information may have been turned over to the government. Otherwise, they can't know if their clients might still be represented by someone who's informing on them -- which would create a massive conflict of interest. They also aren't sure that they themselves aren't under investigation -- or at least that the government hasn't collected evidence against them to use in some later investigation.

Khalid Sheikh Mohammed's lawyer David Nevin has at past hearings said that out of fear of being investigated by the FBI for investigating his notorious client's case -- which undoubtedly requires him to meet with some unsavory characters overseas -- he's had to "pull his punches" and "trim his sails" in representing his client. That means he's not able to represent his client as zealously as he would like, and as his ethical obligations require. It's the classic example of a conflict of interest.

Government lawyers were expected at this week's hearings to present their case for why there's no conflict, now that the FBI says its investigation is closed. But according to a report in The Miami Herald quoting a defense lawyer who was actually allowed the read the war court's opinion, in the still-secret order cancelling the hearing, military commission Judge James Pohl has decided that going forward with the hearing would be "unproductive."

He could have just said that about the entire 9/11 case at Guantanamo.