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April 15, 2014

9/11 Defense Facing Conflict of Interest at Guantanamo After FBI Investigation

The pre-trial hearings of the alleged 9/11 conspirators in Guantanamo military commission screeched to yet another halt today, as the defense teams attempted to get to the bottom of an FBI investigation into their activities. The defense claims that the investigation risks a conflict of interest and would present possible ethical violations if the commissions continue without addressing the investigation.

Unlike the military courts at Guantanamo, U.S. federal courts handle issues like this in complex terrorism cases all the time and have clear rules based on decades of precedent. As Karen Greenberg, director of Fordham University Law School’s Center on National Security, told The Guardian about the FBI investigation, “It's hard, if not impossible, to imagine a federal court judge, allowing such a violation to occur in a federal court prosecution."

We learned today that the FBI approached a security officer on the defense team of alleged 9/11 co-conspirator Ramzi Bin Al Shibh, asking him about the behavior of one or more defense teams, and asking the security officer to sign a non-disclosure agreement about their discussion. 

Since the defense is still unclear on how many members of their staffs were approached by the FBI, Judge Pohl has ordered all defense teams' personnel, both past and present, to inform the chief defense counsel if they have been approached by the FBI or other law enforcement agencies, essentially overriding any confidentiality agreements they may have signed with those agencies.

The prosecution is disputing whether the questioning of a defense security officer would constitute a conflict of interest for the defense teams, and urging Judge Pohl to get the hearings back on track. Defense attorneys say that once the court addresses this issue, which they say is clearly a conflict of interest (making them choose whether to focus on their client or the investigation), they will gladly get back to the regular docket.

We may learn Thursday whether Judge Pohl will order a more thorough investigation, which could include calling to the stand the two FBI agents involved, the chief security officer, and possibly even a member of the prosecution team who also works as chief of staff to the deputy director of the FBI. In the meantime, the hearing is adjourned again.

Part of the reason that Guantanamo military commissions have been such a train wreck is that, unlike federal courts, the commission rules are still unclear, even after three revisions. During arguments today, Judge Pohl even asked Edward Ryan, a member of the prosecution team and a Department of Justice lawyer, whether he thought FBI agents would object to being called to testify at Guantanamo about an ongoing investigation. Needless to say, a federal judge asking the prosecution how things work would never happen.

U.S. federal courts routinely deal with these issues, and many others, without a hiccup. And yet, we're still in Guantanamo, watching military commissions bungle one of the most significant trials in American history.