FT. MEADE, Md. — Lawyers for alleged Sept. 11 mastermind Khalid Shaikh Mohammed and his four codefendants alleged Monday that two FBI agents recently approached a court-appointed member of the defense team in an effort to seek confidential information regarding their cases.
The allegations were raised at the start of a week of pretrial hearings at the prison facility in Guantanamo Bay, Cuba. Army Col. James L. Pohl, the military judge in the proceeding, had planned to consider whether one of the defendants, Ramzi Binalshibh, was competent to stand trial after he had repeatedly disrupted court proceedings.
Instead, defense lawyers called for an immediate investigation into their allegations of FBI interference, which they said supported previous claims that the government had spied on the defense. In the past, they complained that the government listened to private attorney-client comments in the courtroom and recorded other conversations in the prison visiting room. In those instances, changes were made to prevent government monitoring.
The new allegations appear more serious because defense lawyers are contending that two FBI agents on April 6 approached a civilian paralegal who had been appointed to work with Binalshibh’s defense team. The paralegal, who has top security clearance, was acting as a deputy defense security official to review defense court filings before they are released publicly to ensure they do not contain information that would compromise U.S. national security.
The paralegal, who is privy to defense strategies, was reportedly asked to provide the FBI with confidential information regarding defense cases. Defense lawyers called it a clear breach of lawyer-client privacy.
The lead prosecutor, Army Brig. Gen. Mark Martins, said he learned of the allegations Sunday night and suggested the motion was a defense tactic to delay the competency hearing and postpone any future trial — likely to be the first and only courtroom case in the Sept. 11, 2001, attacks in New York, Washington and Pennsylvania.
The FBI declined to comment.
According to sources, the alleged FBI actions may have been part of a leak investigation to identify who on the defense teams gave the news media this year a written “manifesto” from Mohammed about life at the Guantanamo prison.
James Harrington, the lead counsel for Binalshibh, asked the judge to stop the competency hearing and conduct a court investigation into the allegations of FBI misconduct. “This is more than just something of circumstantial evidence,” Harrington told the judge. “Here it really happened. And there’s evidence of it. I cannot see how anything can go forward.”
Cheryl Bormann, who represents defendant Walid bin Attash, said she suspected the FBI may have approached other defense team members as well, creating a sense of division and distrust among the various defense groups.
“I know I’ve done nothing wrong,” she told the judge. “But I can’t vouch for anybody else on my team. And I can’t vouch for anyone else on the other defense teams. We have a conflict of interest.”
Anne FitzGerald, director of research and crisis response at Amnesty International, said the allegations raised new questions about the credibility of the proceedings at Guantanamo.
“If true, this would be the latest in a string of attempts to undermine the ability of the defense to represent their clients — one of the hallmarks of a fair trial,” she said. “This week’s hearing was expected to cover whether one of the defendants is competent to stand trial. The bigger issue is that Guantanamo is not competent to deliver justice.”
The defense lawyers filed an emergency motion late Sunday asking the judge to investigate. They attached a copy of a nondisclosure agreement that the unnamed paralegal signed. The motion and attachment remain sealed, like much of the material in the case.
The general urged the judge to take up the competency matter first, and then deal with the allegations of FBI interference.
The judge convened a closed-session conference with government lawyers about the competency issue and said pretrial hearings would resume Tuesday. He did not signal whether he would start with the competency matter.
All five defendants have pleaded not guilty. The hearings are being held at the U.S. naval base on Guantanamo Bay, and are being screened for journalists at Ft. Meade.