6/16 Session #2: The Defense on FBI Investigations of ... The Defense

It’s on again.  After brief housekeeping, we quickly turn to the substance---and in particular to AE292 and 292T, pleadings jointly filed by the defense, and both asking for a wider inquiry into the government’s investigations of various defense team members and an abatement in the proceedings. In a recent order, the military judge had said that the information furnished by a “Special Review Team”---the judge’s term for outside DOJ counsel---had not adequately addressed the issues raised by the defense in their filings.  (The Special Review Team filed both ex parte and public submissions regarding the FBI’s inquiry.) Thus the presence, today, of Campoamor-Sanchez and company, and the absence of the Chief Prosecutor and his team. Argument begins with Ramzi Binalshibh’s civilian death penalty lawyer, Jim Harrington.  But instead of conflicts, he first speaks of continued mistreatment of his client by the GTMO guard force. Lately, the detainee has been harassed and mocked by guards, and awakened from his sleep at all hours, according to counsel; Harrington thus asks for an order putting a stop to the abuses.  And he insists that, contrary to the prosecution’s suggestion, Binalshibh isn’t mentally ill, and hasn’t imagined any of the abuses. His request lodged, the lawyer pivots back to AE292. In short, Harrington tells the military judge, Army Col. James Pohl, that Harrington has learned that other defense personnel indeed have been approached by FBI investigators.  In particular, Harrington suspected that, in addition to his defense security officer (“DSO”), his investigator, Elbert Cruz, also had been interviewed by law enforcement.  (The latter denied being contacted by the FBI, but Harrington disbelieved Cruz.)  As a consequence, both the DSO and the investigator have departed the Binalshibh defense team---to the current detriment of Harrington’s current efforts in defending his client.  When asked, Harrington confirms that neither staffer was the focus of the FBI’s inquiry---and that the investigation’s target remains a member of Team Binalshibh.  (And added quirk: the FBI’s interviews were, according to Harrington, arranged by a former investigator for Mustafa Al-Hawsawi’s defense team, an investigator named Thomas Gilhool.) The upshot: Harrington finds himself having to explain to Binalshibh that a potentially prosecution-aligned person was working on Binalshibh’s behalf for an extended period---a year and a half, when the lawyer tallies up the service of the DSO and the investigator. It’s troubling stuff, which undergirds Harrington’s bid to learn further information about the FBI, and thus, the possibility for conflicts.  Harrington adds that the government public response to the defense’s filings---that the investigations in question are closed, and that the 9/11 defense lawyers are not under any scrutiny---is completely inadequate.  Cases aren’t really ever closed, he argues.  And moreover, an investigation might not target a lawyer, but instead target defense staffers---and neverthless impinge upon the attorney-client privilege all the same. When asked, Harrington confirms that defense personnel generally can report criminal wrongdoing to the authorities.  That’s beside the point; his case is about a government attempt, from the outside, to intrude into defense privileges and to erode defense staffers’ allegiance to the client.  Harrington lastly emphasizes his ethical obligation to report real or possible conflicts to Binalshibh.  What can Harrington tell him, without knowing more about transpired?  We need full disclosure, Harrington argues---and discovery into the government’s inquiry.   Over to KSM Learned Counsel, who confronts a similar situation: a linguist for his team was interviewed by the FBI over a year ago.  Like Harrington, Nevin finds fault with the facts as reported to date by the Special Review Team.  Based on what’s been made public so far, Nevin cannot tell, for example, about the extent to which his linguist was implicated by third parties.  Consider that the initial questioning of the Binalshibh team’s DSO was not limited to persons associated with Binalshibh’s crew; in fact, says Nevin, FBI personnel interviewed the DSO about all defense teams, including counsel and support staff for KSM. We also don’t know what confidential information (if any) was revealed, perhaps contrary to the parties’ joint defense agreement.  And other investigations might be ongoing, notwithstanding the government’s contrary assurances.  After all, argues Nevin, the FBI oddly insists that it cannot confirm an investigation’s end unless the target furnishes both name and birth date.  KSM’s lawyer also observes (and again with more than a hint of suspicion) that investigators also prodded KSM’s linguist to deflect questions about the FBI’s approach, by describing it as pertaining to the linguist’s security clearance reinvestigation.  Why all the skullduggery, if the matter is indeed concluded? Once more echoing Harrington, Nevin turns to the government’s two key claims: that there were two investigations into non-lawyers, which are now closed; and that under the law, investigations into non-lawyers do not present current conflicts.  That’s wildly wrong, as Nevin sees things: plenty of cases contradict the government’s assertions, and treat defense staff and attorneys equally for conflicts purposes.  (Yale Law’s Larry Fox has reaffirmed as much in a declaration furnished to Nevin and company.)  And at any rate, loads of confidential information gets filtered through KSM’s linguist; how could investigation of the linguist not therefore compromise confidences in a practical sense?  As for closure, Nevin agrees with Harrington that investigations don’t really close; and moreover, Binalshibh’s investigator is subject to further investigation---if not criminally, by the FBI, than under security auspices, by the DOD. Wrapping up, Nevin stoutly rejects the government’s claim that there’s no conflict here: the investigation at issue affects him directly.  By way of example, Nevin says he had planned a trip to the middle east, for fact gathering purposes---which he had to cancel, once the FBI’s inquiry came to light.  That’s a direct interference in the defense function, one made more profound by the government’s frequent invocation of the Lynn Stewart case. (That defense attorney was famously convicted of passing messages from her client, the Blind Sheik, in violation of Special Administrative Measures.)  Mere mention of the Stewart debacle provokes big-time anxiety for Nevin, and forces him to be exceedingly cautious---less than zealous---in defending his client. Maybe enough to force his withdrawal from the case.  And that very threat is why the court should abate the proceedings, and look into the matter. Now to Cheryl Bormann, who says she doesn’t know what she doesn’t know.  For example, she doesn’t know what the government has disclosed in its ex parte filings about the investigation into defense team members---Bormann having only been privy to the government’s public submission.  She also doesn’t know who was and was not interviewed by the FBI.  Ominously, Bormann surmises that at least one of the current and former defense staffers surveyed may have *lied* to defense counsel about possible FBI approaches in the past.  And being in the dark is, moreover, enormously harmful to the defense function. Like Nevin, Bormann has refrained from critical defense activities (fact research and the like), given the specter of possible government investigation.  That’s a tremendous concern in a case of this complexity and seriousness, she says.  Bormann ends with a reference to the prosecution’s response, the last time her crew asked for information into possible monitoring of attorney-client confidences: “we decline to provide that information.” Well, that eyebrow-raising answer came well before the recent snafu with Binalshibh’s DSO, and the FBI’s direct interferences in the defense function.  A full fact-finding effort is thus required, in order to ensure Bin Attash’s right to conflict-free counsel.