FBI attempts to infiltrate one of the defense teams in a Guantánamo Bay trial related to the attacks of Sept. 11, 2001, has led to the second straight cancellation of pretrial hearings at the controversial island prison, putting the case on pause until at least August of this year. The issue has brought the legal system there, which is a mix of civilian and military courts, to a standstill. As a result, Khalid Sheikh Mohammed and the other four accused 9/11 plotters haven't been in court since February.
The issue of intrusion by federal agents took center stage in April of 2014, when an FBI employee approached and attempted to recruit as an informant a member of the legal team of Ramzi bin al-Shibh, one of the five co-defendants in the death-penalty case. After the surreptitious questioning came to light, the military judge ordered an investigation into whether any or all of the defense teams had been compromised, and if a conflict of interest had been created as a result of the FBI's meddling.
Now, more than a decade after the defendants were captured, a trial is nowhere in sight. By way of contrast, a civilian court recently tried, convicted, and sentenced Dzhokhar Tsarnaev, one of the two Boston Marathon bombers, within two years of the attack.
Barack Obama’s administration initially planned to try the 9/11 case in a civilian court in New York City, but balked under political pressure from Senate Republicans and New York City mayor Mike Bloomberg, and returned the proceedings to Guantánamo Bay. That decision has resulted in a seemingly endless parade of complications and delays.
“Each of these never-ending glitches — cancellations, interruptions, administrative hurdles — at Guantánamo diminish even further the viability of the military commissions,” says Karen Greenberg, Director of the Center on National Security at Fordham University's School of Law.
The full story of what spurred the FBI investigation, and the extent of the infiltration, remains classified. Publicly known, though, is that in April 2014 the FBI approached the Defense Security Officer on bin al-Shibh's team [PDF], to “create a relationship” with him that he was forbidden from disclosing. The officer told his team about the attempted recruitment, however. “Only because of this disclosure did we learn of that another member of our team had been cooperating with the FBI since November, 2013,” says James Harrington, civilian attorney for Ramzi bin al-Shibh, in an email to Al Jazeera.
Since April 2014 incident, the Department of Justice unit tasked with investigating the FBI intrusion, known as the Special Review Team (SRT), has filed 13 classified reports, but only judge James Pohl, an Army colonel, can see them. The back-and-forth litigation between the defense teams and the prosecution has resulted in dozens of motions and counter-motions, and whether the issue will be resolved by the August deadline remains unclear. One proposal has been to sever the trial of bin al-Shibh — the defendant whose team was directly questioned — from the other four defendants, a move the prosecution has vigorously opposed.
A recently released court order [PDF] stated that the independent inquiry into the FBI interference, carried out by the SRT, needed more time to complete their investigation. Citing the review team report, Judge James Pohl canceled court proceeding scheduled for this week. The order was dated May 15, 2015, but only made public this week.
The personal fallout for members of bin al-Shibh's defense team remain unclear as well. They've been told by the government that none of them are under criminal investigation or at risk of losing their security clearance, which many of them depend on for work. “Despite these representations, this has been a traumatic experience for many members of the team,” says Harrington. “Some are career military members or contract employees who are dependent on their security clearances for their livelihood. Even though they had nothing to do with the events that started this process, it has taken a severe toll on them.”
Attorneys on other defense teams see this latest issue as one example in a long list of attempts by the government to shape the outcome of the trial. “The FBI’s infiltration of defense teams is just one more example in a long list of shameful government attempts to manipulate and control the course and outcome of what is supposed to be a fair and transparent prosecution,” says Walter Ruiz, attorney for Mustafa Hawsawi.
When asked if the continuing delays have frustrated or effected the government's case in any way, a military spokesperson responded only by stating the facts of the cancellation. “Based on the most recent classified submission by the SRT, the military judge determined it necessary and appropriate to cancel the June session,” says Lt. Col. Myles B. Caggins III, a Defense Department spokesman for military commissions.
Even when, or if, this particular issue is resolved, there is still a litany of questions that have to be answered before the case can go to trial. “The FBI infiltration is just one of the intrusions plaguing the 9/11 case,” says James Connell, who represents co-defendant Amar al-Baluchi. “Eight months after the FBI infiltration came to light, a former CIA interpreter showed up in the courtroom as a defense linguist. It’s like a Scooby Doo ending — who is going to pull off their mask next?”