Covert Inquiry by F.B.I. Rattles 9/11 Tribunals at Guantánamo
By MATT APUZZO
The F.B.I.’s inquiry of a contractor working for the defense team at
Guantánamo Bay, Cuba, became the focus of pretrial hearings this week,
the latest in a series of events that have undermined a process that was
supposed to move swiftly.
Politics
Covert Inquiry by F.B.I. Rattles 9/11 Tribunals
WASHINGTON — Two weeks ago, a pair of F.B.I.
agents appeared unannounced at the door of a member of the defense team
for one of the men accused of plotting the 9/11 terrorist attacks. As a
contractor working with the defense team at Guantánamo Bay, Cuba, the man was bound by the same confidentiality rules as a lawyer. But the agents wanted to talk.
They asked questions, lawyers say, about the legal teams for Ramzi bin al-Shibh, Khalid Shaikh Mohammed and other accused terrorists who will eventually stand trial before a military tribunal
at Guantánamo. Before they left, the agents asked the contractor to
sign an agreement promising not to tell anyone about the conversation.
With that signature, Mr. bin al-Shibh’s lawyers say, the government turned a member of their team into an F.B.I. informant.
The
F.B.I.’s inquiry became the focus of the pretrial hearings at
Guantánamo this week, after the contractor disclosed it to the defense
team. It was a reminder that, no matter how much the proceedings at the
island military prison resemble a familiar American trial, the invisible
hand of the United States government is at work there in ways unlike
anything seen in typical courtrooms.
“It’s
a courtroom with three benches,” said Eugene R. Fidell, who teaches
military justice at Yale Law School. “There’s one person pretending to
be the judge, and two other agencies behind the scenes exerting at least
as much influence.”
Thirteen
years after 9/11, nobody has been convicted in connection with the
attacks and, because of the F.B.I. visit, a trial could be delayed even
longer. But it was only the latest in a string of strange events at
Guantánamo Bay that, coupled with the decade-long delay, have undermined
a process that was supposed to move swiftly, without the encumbrances
of the civilian legal system and its traditional rules of evidence.
Last
year, as a lawyer for Mr. Mohammed was speaking during another hearing,
a red light began flashing. Then the videofeed from the courtroom
abruptly cut out. The emergency censorship system had been activated.
But why? And by whom? The defense lawyer had said nothing classified.
And the court officer responsible for protecting state secrets had not
triggered the system. Days later, the military judge, Col. James L.
Pohl, announced that he had been told that an “original classification
authority” — meaning the C.I.A.
— was secretly monitoring the proceedings. Unknown to everyone else,
the agency had its own button, which the judge swiftly and angrily
disconnected.
Last
year, the government acknowledged that microphones were hidden inside
what looked like smoke detectors in the rooms where detainees met with
their lawyers. Those microphones gave officials the ability to eavesdrop
on confidential conversations, but the military said it never did so.
“At
some point, it just becomes silly,” said Glenn Sulmasy, a military law
professor at the Coast Guard Academy who supports military trials for
terrorism but said problems at Guantánamo Bay have undermined confidence
in the system. “I don’t think we’re at that point yet, but at some
point it just becomes surreal. It’s like there’s a shadow trial going on
and we’re only finding out about it in bits and pieces.”
The
court has also been troubled by computer problems. A botched computer
update gave prosecutors and defense lawyers access to the other side’s
confidential work. And the Pentagon acknowledged inadvertently searching
and copying defense lawyers’ emails but said nobody read them.
“These
things keep happening,” a defense lawyer, James Harrington, said this
week as he asked for an investigation into the F.B.I.’s activities. The
other instances seemed like government intrusion, Mr. Harrington said,
but lawyers could not prove it. “Here it really happened.”
The
F.B.I. would not comment and military prosecutors said they knew
nothing about the investigation. But the F.B.I. appears to be
investigating how The Huffington Post got ahold of a 36-page manifesto
that Mr. Mohammed had written in prison.
The
government hopes to start the trial early next year, but it is not
clear whether this issue will result in another delay. Mr. Harrington
said he wanted Colonel Pohl to question F.B.I. officials and determine
whether anyone else on the defense team had been approached by or gave
information to the government.
“It’s
just a horrible atmosphere to operate in,” Mr. Harrington said Friday.
“It’s built on a shaky foundation, and one thing after another happens. I
don’t see how anyone can have confidence in this process.”
Christopher
Jencks, a Southern Methodist University law professor and a former
military prosecutor, said he sympathized with the Guantánamo
prosecutors, who appeared to have been just as surprised as defense
lawyers by the appearance of the F.B.I. and C.I.A. in their cases.
“You
have these military prosecutors who are normally empowered to own their
cases. And they don’t here,” Mr. Jencks said. If this were any other
country’s system, Mr. Jencks said, “The reaction would be, ‘Oh my gosh.
What a kangaroo process.’ ”
President
George W. Bush created the military tribunal system for suspected
terrorists in 2001. Years of court challenges followed and after the
Supreme Court struck down the tribunal’s rules in 2006, Congress
hurriedly wrote new rules giving prisoners more rights. More changes
followed in 2009 and the government says the process is far better and
fairer now.
The
9/11 trial, if it occurs, will be the biggest test of that system. Six
detainees in other cases have pleaded guilty before military
commissions. Two others have gone to trial and been found guilty, only
to have their convictions thrown out by an appeals court.
Greg
McNeal, a former adviser to the top Guantánamo prosecutor, said the
military tribunal system was ripe for episodes like the one with the
F.B.I. because it is so new. The civilian system and the traditional
military judicial system have well-established rules and precedents for
handling issues that arise. “Because it’s new and different, they may
have a sense that they can get away with things,” Mr. McNeal said. He
added, “There are interagency fights happening behind the scenes that
have been going on for the past decade.”
The
Obama administration had hoped to prosecute the 9/11 case in a New York
criminal court. But it reversed course in the face of security fears
and criticism that the government would grant constitutional rights to
terrorists.
While
the military tribunals have been plagued by delays, the department has
successfully prosecuted several terrorism cases in civilian courts. Most
recently, prosecutors in Manhattan won a conviction against Sulaiman
Abu Ghaith, the most senior adviser to Osama bin Laden to be tried in
civilian court in the United States since 9/11.
Attorney
General Eric H. Holder Jr. noted that the New York case had proceeded
from capture to conviction in about a year. “It is hard to imagine this
case being presented with greater efficiency or greater speed,” he said.
Charlie Savage contributed reporting.
COPY http://international.nytimes.com/
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