6/16 Session #3: The Defense and Special Government Counsel on FBI Investigations of ... The Defense

James Connell III, Learned Counsel for Ammar Al-Baluchi, begins on a procedural note: the defense’s motion is less about wrongdoing, and more about the path forward. The court must perform an inquiry, the outcome of which will lead to conflict determinations, both by the court (for constitutional purposes) and by the defense (for ethical purposes).  Most conflicts can be waived, but some cannot.  In the event of a waiveable one, Connell says, the proper move is for the military commission to advise the accused of his right to conflict-free counsel, and to allow the accused to make an informed choice about whether or not to continue with his lawyer. Procedure out of the way, Connell turns to substance.  As far as he and his client are concerned, a conflict already has arisen. Al-Baluchi has been exquisitely careful with his confidences, Connell tells the military judge.  He hasn’t allowed the Red Cross to use his name, for example; the client also hadn’t even met with counsel until February 2013.  This stemmed from Al-Baluchi’s lack of confidence in the attorneys’ capability to shield lawyer-client secrets.  Despite this initial skepticism, the client nevertheless allowed Connell to try and make some headway, by undertaking critical fact investigation abroad.  Connell did this alongside the Binalshibh team---and, in particular, Mr. Cruz, the Binalshibh team investigator who (we now know) was interviewed by the FBI.  Connell and company later made a second trip, this one with KSM’s team, and the linguist who---you guessed it---was interviewed by law enforcement personnel.  The idea is plain enough: Connell’s traveling companions could have learned some confidential information regarding Al-Baluchi, and later turned it over to FBI guys. There’s another wrinkle.  Connell had sought review of a letter, written by his client to and intended for a foreign witness; upon approval by GTMO reviewers, the lawyer wanted to use this letter, in seeking to establish a rapport with the witness.  But he held back, in light of the FBI’s investigation---which, Connell suggests, concerned the passing of unauthorized information from defendants to third parties. And Connell had to tell his client that he opted for this perhaps less than helpful tactic, not because the client desired as much, but instead because the FBI was then conducting a criminal investigation.  (It happens that, in a court declaration, an FBI agent indeed had said that facilitating defendants’ communications with others may constitute a crime.) The impact on Connell’s behavior---and the existence of a conflict, now---is straightforward, he argues. With that in mind, Connell also says he has identified an independent counsel for Mr. Al-Baluchi, Ms. Lee, who is willing to be appointed, acceptable to Al-Baluchi, and able to advise the detainee on any conflicts questions.  Connell asks for Lee’s appointment, which in his view will be necessary as an ethical matter regardless of a constitutional conflict’s existence.  Lastly Connell follows with summary argument on discovery motions related to AE292 (which witnesses he’ll need, the parties who will make use of discovery information, and so on).  He then returns to counsel table. Last for the defense is Walter Ruiz,  lawyer for Mustafa Al-Hawsawi.  The attorney asks for an unusual “severance”---that is, for a separate and immediate ruling for Ruiz’s client on conflict issues. Ruiz explains: despite initially having joined the defense’s joint emergency abatement motion, he’s since learned further information.  And, based on that, Ruiz says he doesn’t know of any actual conflict between his interests and Al-Hawsawi’s. (Of course the court knows more than Ruiz does, given the government’s secret ex parte submissions; it is therefore in a better position to suss out the possibility of a conflict, says Ruiz.)  The lawyer emphasizes the uniqueness of the facts as they relate to Al-Hawsawi. For example, unlike the other defense lawyers, Ruiz has interviewed Mr. Gilhool, a former investigator for the Al-Hawsawi team apparently involved in the FBI interview process. Summing up, Ruiz says he defers to the court, given its superior knowledge of the relevant facts---but also says the known facts satisfy him that no current conflict is in play. On behalf of the government, special counsel Fernando Campoamor-Sanchez emphasizes the threshold legal issue: whether there’s truly a conflict here  If there is no investigation underway of any defense lawyer or staff, can there be a conflict of interest at all?  His answer is an unqualified “no.”  A conflict occurs only when, during a representation, the attorney’s and the client’s interests diverge with respect to a material fact or issue, or a course of action.  Of course that’s a real and serious problem when counsel is investigated by the same body prosecuting counsel’s client. But that's the kicker: there isn’t any such investigation underway in this case. On the contrary, no 9/11 defense counsel is exposed to punishment simply for representing the accused. It is of course true that the defense has been subject to some inquiries, and by offices other than that of the Chief Prosecutor at Guantanamo---but that doesn't suffice under the law.  The court: does it matter that the separate investigation here was related to the criminal prosecution?  That wouldn't mean a change in outcome, answers Campoamor-Sanchez---though the prosecutor concedes that the analysis must change.  The key is whether further representation of the client will expose counsel to risk. Mention of that once more prompts Campoamor-Sanchez to return to his theme: no investigation, no conflict.  Simple fear of an investigation is not enough; nor is speculation.  So put aside all that stuff about what defense counsel “don’t know,” your honor.  All that matters is what the Special Review Team has represented: that as of May 12, the FBI’s preliminary investigations have been closed; that only a security clearance referral was made to the Department of Defense with respect to one individual; that a non-attorney member of the KSM defense team was the subject of an investigation which closed in January of 2013; and that the FBI is not aware of any information that any defense team member or lawyer is subject to current investigation, or that the FBI has any informant or other mole within the defense teams. (The prosecutor dismisses the defense’s suggestion, that an investigation doesn’t really end, out of hand.)  The defense knows all this, underscores Campoamor-Sanchez---and that's sufficient to end the conflicts inquiry, full stop. When asked, Campoamor-Sanchez seems to resist the disclosure of materials filed ex parte; why bother, if the public information is adequate to resolve the legal issue?  At any rate, a motion to uncover such material would have to be brought by conflict-free counsel, in the attorney's view. How can, for example, Nevin litigate discovery under AE292, given his representations to the court today about a genuine, current conflict?  Nevin cannot, in the opinion of the government’s special counsel---at least not without manufacturing an obvious issue for appellate review.  (The attorney gestures towards a down-the-road ineffectiveness of counsel claim.) All this supplies yet another reason, as he sees things, for the commission----and, while they’re at it, defense counsel---to make a finding, now, as to whether a conflict in fact exists. Campoamor-Sanchez raises two more arguments before concluding: first, that the commission’s inquiry to date has been adequate to develop the needed record; and second, that the defense’s litigation has here been exceedingly vigorous, and (contrary to their arguments today) not at all constrained or chilled.  The specially appointed lawyer then ends, by urging rejection of AE292. We’ll break for lunch until 1400.