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4/14 Motions Hearing #1: Ex Parte Hearings, FBI Investigations, and a Recess

Wells Bennett
Monday, April 14, 2014, 10:03 AM

It’s game time, y’all. The military judge, Army Col. James Pohl, ascends the bench and resumes pretrial proceedings in the 9/11 case.  All five accused are present, along with their lawyers and a few other folks.

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It’s game time, y’all. The military judge, Army Col. James Pohl, ascends the bench and resumes pretrial proceedings in the 9/11 case.  All five accused are present, along with their lawyers and a few other folks.

We begin with the advice of rights regarding presence at a pre-trial session---and the possible consequences that might follow even a knowing and voluntary waiver of those rights.  Judge Pohl reads a familiar script to the accused (bar Binalshibh, whose competence---and presence---is at issue this week), and asks each if they understand the right to be present and the potential downsides of skipping out.  All four say they do.

Yesterday, motion AE 152V was filed by the government; it apparently also pertains to Binalshibh and competence matters, and seeks an ex parte hearing. The military judge isn’t inclined to grant it on the papers---and thus, a hearing indeed will be required, now if the government wishes to proceed.  Does it want to?  Indeed it does, says prosecutor Jeffrey Groharing.

Al-Baluchi’s counsel, James Connell III, protests: he’s unclear as to what basis the government is proceeding here; the government only gets to seek ex parte hearings under certain conditions and according to certain rules, and the prosecutors haven’t identified either here.  At any rate, Connell says he can file a substantive response to the prosecutors within an hour.  Can he have a little time?

Wait: Binalshibh lawyer Jim Harrington wants to postpone proceedings for a lot more than an hour.  He request for an abatement arises in connection with an emergency defense motion, filed over the weekend under seal and alleging that the FBI sought to interrogate the security officer assigned to Ramzi Binalshibh’s defense team. According to Harrington, the security officer was questioned about matters pertaining to all defense teams, too.  The investigation makes for a conflict of interest, in his view: between the defense team’s interest in responding to the FBI inquiry, and its interest in representing Binalshibh.  And, Harrington adds, the security guy can’t continue on Binalshibh’s team, pending the outcome of the investigation.  He thus asks Judge Pohl to take up the issue---and for an abatement in all other proceedings in the meantime. 

Walid Bin Attash’s lawyer, Cheryl Bormann, rises to illustrate the conflict sketched out by Harrington.  The FBI agents, she says, sought information on her group from Binalshibh’s security officer.  But Bormann doesn’t know what the officer’s responses were, Bormann says; she doesn’t know whether her colleagues are under suspicion.  Until the matter is resolved, Bormann argues that she cannot advise her own client, Bin Attash, about any potential conflicts or other issues.  “I cannot effectively represent” Bin Attash for the time being, argues Bormann.

The Chief Prosecutor, Brig. Gen. Mark Martins, says the emergency motion is a second-order priority, and should take a backseat to his motion, AE152V. At any rate, Martins notes that the incident in question took place on 6 April.  And yet he’s only hearing about the "emergency" issue now; he further observes that the defense’s motion was “very well composed," thus hinting an effor to sandbag the prosecution.  Nevertheless, the Chief Prosecutor recognizes the serious of Harrington's allegations.  Thus he proposes that the court take up AE152V, while allowing the prosecution to digest and respond to the filing by Harrington and company.   For its part, the court wonders if he could resolve matters partially by doing nothing.  The Binalshibh motion was filed by the government; at the same time, there’s no defense motion regardnig Binalshibh's mental state. Thus, he says, if we set aside competence matters entirely, then there would be no need to hold an ex parte session, as Martins has proposed.  (When Judge Pohl asks, the Chief Prosecutor denies any prosecution knowledge of an FBI visit to Binalshibh’s security officer; this affords Martins a further opportunity to urge adherence to the docket. )

Harrington rises to emphasize that his crew filed as soon as they could; had they known of any skullduggery earlier, they would have acted earlier, before the defense’s arrival at GTMO.  The lawyer emphasizes that his side is not taking a position on his client’s competence at this time. KSM’s lawyer, David Nevin, adds context: had the defense made a decision not to call the matter to Judge Pohl’s attention, then the attorneys would have run afoul of ethical obligations.  We had no choice but to act, your honor; Nevin says he doesn’t appreciate the suggestion that defense attorneys waited until the last minute.  Ditto Al-Hawsawi’s counsel, Walter Ruiz---who says he first learned of the FBI visit on Saturday.  He too argues by counterfactual.  We couldn’t have Binalshibh’s security officer working for the FBI, for obvious reasons.  And, Ruiz adds, a defense staffer, when confronted by investigators, might feel uncomfortable revealing the fact of that confrontation to his or her defense colleagues.  Cheryl Bormann adds a note or two of concurrence, along with an exhibit---a non-disclosure agreement which would seemingly limit what Binalshibh’s security officer could say to non-FBI people.

There's a pause, before Judge Pohl announces the way forward: prosecutors will proceed ex parte this afternoon and take up AE152J with the court only.  But defense won’t join in (and yours truly won't observe) any further proceedings until tomorrow.  Which is to say: see y’all then.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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