Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

8/14 Session #1: Conflicts, Conflicts Everywhere

Matt Danzer
Friday, August 15, 2014, 11:26 AM
After agreeing Wednesday to reconsider the severance of Ramzi Binalshibh from the other four accused in the 9/11 case, Judge Pohl reconvenes the commission on Thursday with a full house—all five accused, their defense teams, and the Special Review Team on behalf of the government.

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After agreeing Wednesday to reconsider the severance of Ramzi Binalshibh from the other four accused in the 9/11 case, Judge Pohl reconvenes the commission on Thursday with a full house—all five accused, their defense teams, and the Special Review Team on behalf of the government. The usual prosecution team is recused from the morning's proceedings so the commission can address potential conflicts of interest. The court turns to the AE 292 series of motions, all pertaining to Judge Pohl's order, AE 292QQ, on potential conflicts of interest arising from past FBI interviews of defense team personnel. As a quick refresher, that order found no conflict for four of the accused—all but Binalshibh—and ordered further inquiry into potential conflicts for Binalshibh's defense team. After some initial housekeeping allowing various defense teams to take the full 14 days afforded by the commission rules to file responses to motions, Judge Pohl turns to a joint motion by three of the accused—Khalid Shaikh Mohammad, Ali Abdul Aziz Ali, and Bin Attash—for reconsideration of the portion of 292QQ that found no conflict of interest in their defense teams. Learned Counsel David Nevin, representing KSM, is particularly concerned that the court based its order on incomplete declarations from the FBI agents involved in the incident. While the agents limited their declarations to the existence of criminal investigations (as opposed to intelligence or other investigations) into the defense teams, Nevin says the agents' questions to Binalshibh's defense security officer ("DSO") indicate that they were also investigating the other defense teams. Given the extent to which the defense teams inevitably work together and the possibility that the FBI left a "poison pill" keeping team members from taking certain actions, the investigation "creates an environment of restricted advocacy." Considering all of this uncertainty, Nevin requests the same inquiry into potential conflicts that the court ordered for Binalshibh. After Judge Pohl and Nevin briefly rehash the almost year-old debate over whether counsel for the accused must sign a memorandum of understanding regarding rules imposed by the case's protective order before they can receive classified information, Nevin concludes by asking the court to reverse or reconsider its order and provide a "thorough inquiry" into potential conflicts in the KSM team. Next up is Aziz Ali lawyer James Connell III on the same motion. He begins by highlighting some of the continued effects of the FBI investigation into the defense teams, which the FBI says it closed in June. First, his team had to cancel a witness interview because it is unclear what information the Binalshibh DSO revealed about a prior visit with that witness and the accused does not know whether to trust his counsel. Second, Connell cannot travel to the Middle East with the same KSM linguist as on a prior trip because of uncertainty over the result of the investigation. And finally, there is concern that counsel will trigger a new FBI investigation by communicating with his client. To address these concerns, Connell is asking the court to order the commission's convening authority to allow the Chief Defense Counsel ("CDC") to appoint, if appropriate, independent counsel to advise Aziz Ali on the issue and allow the accused to decide whether to provide informed consent to a potential conflict. Why does the CDC need a court order to appoint independent counsel? Connell says he will request a statement from the CDC on the issue and concludes. A bit more housekeeping: Judge Pohl grants a request by Bin Attash's lawyer Cheryl Bormann to argue after the Special Review Team on this motion, and Binalshibh's lawyer Jim Harrington opts not to argue this matter until his team files a response to the Special Review Team's motion for reconsideration. The court then turns to Kevin Driscoll, arguing for the Special Review Team against the joint motion for reconsideration. He explains that the FBI investigations into a non-attorney member of Binalshibh's team and a non-attorney member of KSM's team have been closed "for some time" and the government has provided assurances that no current member of any defense team is currently under investigation. Driscoll also dismisses the notion that the FBI left a poison pill in one of the defense teams. These facts are enough to defeat further inquiry into potential conflicts for three of the accused, and "speculative fear of investigation" cannot create a conflict of interest. Bormann passes on an opportunity to be heard, so Nevin returns for rebuttal and emphasizes that everything in the Special Review Team's argument against further inquiry for the three accused was true for Binalshibh, yet the court found it proper for further inquiry in his case. Nevin also disputes the proposition that fear of investigation cannot produce a conflict of interest, arguing that the Special Review Team is misinterpreting some case law. Judge Pohl points out that this approach puts the determination of a conflict in the hands of defense counsel. After all, he already found in his original order that there is enough information to determine there is no conflict of interest. What happens if the judge reconsiders, conducts an inquiry, and finds no conflict, but the defense teams still fear investigation? Nevin responds that under rules of professional conduct, he is required to withdraw from the case if he believes he has a conflict of interest, but currently the government and the court have not provided him—or the court—with any information with which to assess whether the defense teams' fear of investigation is reasonable. Nor is it entirely clear that the FBI's internal inquiry into the investigations actually showed that there are no investigations into the defense team. Nevin raises the possibility that those who conducted that inquiry did not have the security clearance necessary to learn about ongoing investigations. Connell and Driscoll also offer brief rebuttals, after which the court takes a break.

Matt Danzer is a graduate of Columbia Law School, where he was a member of the Columbia Law Review and served as president of the National Security Law Society. He also works as an editor for the Topic A public policy blogs on Roll Call. He graduated from Cornell University in 2012 with a B.S., with honors, in Industrial and Labor Relations.

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