4/17 Session #1: A Special Trial Counsel, and a Pause

We’re back in session.  The military judge, Army Col. James L. Pohl, calls proceedings to order.  Of the five 9/11 accused, there are two absentees: Walid Bin Attash and Mustafa Al-Hawsawi.  That prompts a voluntariness discussion, which proceeds according to the expected script.

First on our substantive agenda, and all of that agenda, really: the FBI’s recent interview of a defense security officer (“DSO”) assigned to Binalshibh’s team---and the alleged intrusion into defense functions arising from that interview.  Recall that the FBI had been looking into the publication of “An Invitation to Happiness,” KSM’s goofball treatise on morality, culture, and religion.  And, importantly, upon speaking with FBI personnel, the Binalshibh team's DSO seemingly executed a non-disclosure form presented to him by FBI agents.  This document apparently purports to create a relationship of trust between the counterparty and the FBI---or something similarly in tension with the DSO's allegiance to Binalshibh and company.

Upon learning of this, defense counsel immediately asked for a pause in proceedings and an inquiry by the court, given the compromise of a staffer ostensibly aligned with the defense; the possibility of a conflict; and the chance that other defense staffers might have been similarly questioned.  After litigation on Monday, the military commission orally ordered any defense team members to disclose any FBI contacts to defense lawyers---notwithstanding any suggestion to the contrary by FBI non-disclosure materials.

That brings us to today, and to AE292F---a motion filed late last night, and not yet appearing on the docket. The prosecution on Monday proclaimed its natural exclusion from any inquiry regarding the FBI security investigation; for that purpose, the government yesterday appointed a special trial lawyer, Fernando Campoamor-Sanchez, to represent the United States’ interests in court. Sanchez, in turn and through the vehicle of AE292F, has asked for a delay until April 21, when he’ll file a written response.  Having that in mind, prosecutor Edward Ryan says he can’t really speak about any judicially supervised investigation into the FBI’s own investigation. Accordingly, his crew has taken as many steps as they can, he says, in order to remain insulated.  He sits.  And when KSM attorney David Nevin rises, Ryan immediately objects, given the functional absence of the United States’ representative from any litigation today. Ryan is overruled though, and Nevin begins, the court having inquired only about the best procedural way forward---and not about any substantive legal matters warranting response from the prosecution.  

The gist of Nevin’s view is that ex parte hearings are a no-no here---and that Sanchez, the government’s specially-appointed trial lawyer, may seek to file his response without supplying a copy to the defense. The military judge sympathizes, but thinks any ruling to be premature: there’s no way to establish whether to proceed ex parte unless I see the special counsel’s filing first, Judge Pohl explains.  (He adds that if the government doesn’t wish to accept an order to disclose its filing to the defense, it can always withdraw its filing entirely; ditto the defense, if its request to file ex parte is rejected.)  At any rate, Nevin asks to proceed with an investigation into the FBI.  No need to wait for Sanchez to file any further paper.  (A few other defense counsel chime in: among others, Ammar Al-Baluchi’s Learned Counsel, James Connell III, asks for additional time for his group to respond, in writing, to anything submitted by the special counsel.)

The military judge sees three matters left for disposition.  The first concerns the formality of the ruling he made orally, on Monday.  At that time Judge Pohl ordered the Binalshibh team’s DSO to be released from the non-disclosure agreement signed with the FBI.  Will that be sufficient?  Judge Pohl asks the lawyers to get back to him on that point.  At any rate, the military judge also orders the DSO, once released, to prepare a declaration memorializing his meeting with the FBI. That will be sealed, not read by any one, and filed with the commission. (Judge Pohl adds that the paper might well be shared with other defense counsel down the road---subject to privilege issues.)

The Judge’s third and final item: the state of play.  It appears there is some sort of investigation by the FBI into Khalid Sheikh Mohammed’s defense team.  Judge Pohl thus suggests, and attorney David Nevin agrees, that a third party counsel may have to be appointed, in order to advise KSM about his options in the meantime---even if a conflict might not have arisen in the legal sense.  Likewise, the court suggests, and Binalshibh lawyer James Harrington agrees, that Binalshibh’s DSO indeed was contacted in a manner that created at least an “appearance of a conflict.” The DSO thus will need outside counsel, too, most likely. The court is careful to express no view as to the other accused, given the state of the record now. But the other three---Al-Hawsawi, Al-Baluchi, and Bin Attash---can seek the appointment of outside counsel, if they so desire, by means of a written motion.  Ryan rises to point out again that the United States is effectively without representation in the courtroom today; commission prosecutors can’t stand up to litigate the subjects now at issue, he says. The military judge agrees.  Thus he winds up his overview of the procedural roadmap---while also emphasizing that he has not made any formal findings from the commission about the existence of a conflict.

A few housekeeping matters follow. Among other things, the government waives further argument on the long-pending AE008, the defense’s motion to dismiss for defective referral. Also, there’s this unexpected little development: the separation from the military by Army Maj. Jason Wright, one of KSM’s lawyers.  He explains that an Army JAG, upon promotion to Major, must attend a graduate course at Charlottesville Virginia.  But that entails a break from current cases, and service obligations after the course’s completion.  One can seek an operational deferral, which Wright indeed asked for and received last year.  But this year, Wright’s postponement request was denied. Thus, by regulation, the attorney confronted a stark choice: either abandon KSM’s defense, and pack off to Charlottesville; or resign the Army and carry on with his representation of the client.  He chose the latter course. Wright tells Judge Pohl that he doesn’t seek any relief here; he only desires to keep the Commission updated.  He’ll formally separate from the military in August, he says.