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May 2014 , Page 57 

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The Curse of the Three-Letter Agencies (Military Commissions Perspective)

By Mason C. Clutter

Read more Military Commissions Perspective columns.

The government cannot stay out of its own way. After allegations of CIA access to a special button that shuts down the courtroom to the outside world, listening devices in attorney-client meeting rooms, recordings of attorney conversations in the courtroom, third-party review of attorney-client communications, and a breached IT system at the hands of the government, now the FBI is alleged to have attempted to convert a member of a defense team into a confidential informant. This latest stunt again brought proceedings to a halt during the most recent hearings in the military commissions trial of the alleged 9/11 co-defendants in Guantánamo Bay, Cuba, on April 14-17, 2014.

In December 2013, the proceedings were shut down when Chief Prosecutor Brigadier General Mark Martins requested a competency evaluation of defendant Ramzi bin al Shibh. After al Shibh refused to meet with members of the mental health board, the proceedings were further delayed through April.1 The April session was likely to cover only the competency issue, this time under Rule 909 of the Rules for Military Commissions, which allows a hearing to be held regarding a defendant’s mental capacity.2 

This request for delay, again at the hands of the government, was unusual because Rule 909 presumes that a defendant is competent until proven otherwise. Neither the defense nor the prosecution alleges that al Shibh is incompetent. Rather, the prosecutors want to pad the record with evidence of al Shibh’s competence following several outbursts by the defendant that have resulted in his removal from court. Mr. al Shibh has expressed frustration about the commission’s failure to investigate and prohibit the alleged shaking of his cell, which is located in a secret camp on the Caribbean island.

Less than 12 hours before the commission was called to order, all five defense teams filed an emergency motion to abate the proceedings due to a potential conflict of interest created as a result of alleged FBI misconduct into the attorney-client privilege of one defense team. The defendants asked the judge to conduct a judicial inquiry into an allegation that the FBI approached the defense security officer (DSO) to Mr. al Shibh’s team and asked him to sign a nondisclosure agreement that allegedly established him as an informant for the FBI.3 A DSO provides the defense lawyers with guidance on how to handle and label classified information. According to defense lawyers’ representations in court, the DSO had second thoughts about what he agreed to do and notified his supervisor. The supervisor notified al Shibh’s learned, or death penalty, counsel Jim Harrington of the situation. Mr. Harrington notified the other defense lawyers of the alleged fact of the FBI’s conduct, which led to the emergency filing. The alleged conduct took place on April 6, and defense lawyers became aware of it 2-3 days before the hearings.

The prosecution team (i.e., the little “g” government) claims no knowledge of this conduct and appeared surprised by the filing. However, later defense counsel alleged that a member of the prosecution team, Joanna Baltes, also serves as chief of staff to the deputy director of the FBI. Accordingly, counsel has requested that she be part of any judicial inquiry into the alleged conflict.

Because of the presumption of competency and the fact that no party challenged al Shibh’s competency, Judge Pohl found that the hearing would be unnecessary at this juncture and focused the commission’s attention on the latest three-letter agency scandal. The five defense teams raised concerns regarding a potential conflict of interest for each lawyer on each of the five teams, in light of other alleged evidence that there is an investigation currently pending into Khalid Sheikh Mohammed’s defense team, and the inability at the time to know if any other members of any other team within the defense privilege have ever been approached by government agencies and asked about activities relating to confidential activities by the teams.

Pursuant to Rule 1.7 of the ABA Model Rules of Professional Conduct, a client is entitled to conflict-free counsel.4 While a conflict can be waived by a defendant, who is the “owner” of the right to conflict-free representation, the defendant must be informed by independent counsel, outside of the conflict, of the right to conflict-free counsel and the ability to waive said right. If in fact a lawyer determines that a conflict of interest does exist, that lawyer must make an individual and personal decision, consistent with the ethical guidelines in each state and bar in which she is licensed, about whether or not she can proceed in the case. This inquiry must not only be conducted by the lawyer, but by the presiding judicial body, argued defense counsel. David Nevin, NACDL member and counsel to Khalid Shaikh Mohammad, argued that counsel’s failure to raise the conflict question with the presiding judge can amount to a structural error that could constitute per se error.5 

All of this raises several questions: What is the “big G” government doing in Guantánamo? Why does the “little g” government not know about it? How is it possible that the left hand does not know what the right hand is doing? Is there no interagency communication about how not to interfere with a pending death penalty trial?

Prosecutor Ed Ryan was very reluctant to say anything about the allegations, and in fact the prosecution completely walled itself off from the controversy, appointing a special counsel from the Department of Justice to represent the government on this issue. Judge Pohl asked Mr. Ryan: “If I issue an order for the FBI agents to be produced — and again, if you don’t want to answer this, you don’t have to — would it be your experience that it’s unlikely they will want to cooperate because it’s an ongoing investigation?” In answering, Mr. Ryan pondered “government privileges that would be at stake” and “internal procedures, rules, etc.” But he concluded, “I don’t feel comfortable giving an answer on that one, judge.” Ryan added: “I think it’s outside my lane, other than to say that 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 is in — exists.”

On that, the prosecution had a clear opinion.

Regardless of whether General Martins or other members of the prosecution team knew of this latest breach of the privilege, it is time for Judge Pohl to flex some judicial muscle and let the three-letter agencies know once and for all that they need to stay out of his case. One could imagine the likely response of a federal judge if these kinds of allegations were made in a pending federal death penalty case. Judge Pohl must not allow the government to manhandle his case the way it has been. If the FBI does not want him to interfere with its investigations, then the FBI needs to stay out of Pohl’s courtroom.

Fortunately, during the hearings, the judge released an order in a concurrently pending death penalty case against the alleged bomber of the U.S.S. Cole. Judge Pohl flexed plenty of muscle in that case and ordered the government to hand over to the defense evidence of Abd al Rahim al Nashiri’s arrest, rendition, detention, and interrogation prior to his arrival in Guantánamo Bay. The government is likely to file an interlocutory appeal, as permitted under the Rules for Military Commissions. But, that brazen ruling in favor of justice and against, essentially, the CIA, gives this observer hope that Judge Pohl understands the gravity of the issues before him and is not afraid of the three-letter agencies. He is presented with another opportunity to keep the government agencies in check in the 9/11 case. Doing so would be a step in the right direction to ensuring justice is done — at the hands of the judge, rather than the government, which has already shown that it cannot be trusted to allow justice to prevail.

On May 21, 2014, special trial counsel to the government notified the commission that the “investigation at issue...is now closed.”

  1. See R.M.C. 706. See also Carol Rosenberg, Alleged 9/11 Conspirator Stymies Mental Health Board, Miami Herald, Jan. 31, 2014, available at http://www.miamiherald.com/2014/01/31/3905404/alleged-911-conspirator-stymies.html (last visited May 12, 2014).
  2. See R.M.C. 909. See also Carol Rosenberg, 9/11 Competency Hearing Puts Focus on Guantánamo’s Secret Prison, Miami Herald, April 13, 2014, available at http://www.miamiherald.com/2014/04/13/4057792/911-defendants-competency-is-focus.html (last visited May 12, 2014).
  3. When this article was drafted, the defense motion was still not available for public review after its filing on April 13, 2014.
  4. Model Rules of Prof’l Conduct R. 1.7(a)(2) (1983) (“A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if … there is a significant risk that the representation of one or more clients will be materially limited by … a personal interest of a lawyer.”).
  5. SeeWood v. Georgia, 450 U.S. 261 (1981); Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475 (1978).

About the Author
Mason C. Clutter is NACDL’s National Security and Privacy Counsel.

Mason C. Clutter
1660 L Street, NW, 12th Floor
Washington, DC 20036
Fax 202-872-8690

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