Due Process Violation Claimed Over CIA Electronic Presence in 9/11 Pretrial

Sketch by Janet Hamlin. Video and audio reaches the courtroom viewing gallery on a 40-second delay to prevent the spill of classified information.

Guantanamo Naval Base, Cuba – A silver computer tablet sits on the prosecutors' table at the Sept. 11 hearings through which the CIA and other "original classification authorities" can tell the prosecution team when to request that the military judge halt the proceedings. Suspicion over the device prompted one defense team to file a motion seeking to end "apparent intelligence agency disruption" of the case, which attorneys first noticed last month when questioning key witnesses who led the CIA's abusive black-site interrogation program.

On Wednesday, the motion prompted tense and unusually heated exchanges regarding the legality of the CIA’s electronic ability to instruct prosecutors when it believes the proceedings should be stopped due to a potential spill of classified information.

James Connell, the lead lawyer for Ammar al Baluchi, argued to Air Force Col. Shane Cohen that the apparent “outside assistance” by the CIA could violate the due process rights of the five men accused of planning the 9/11 attacks.

“That is the device,” Connell said loudly, pointing to a silver tablet that rested in front of prosecutor Christopher Dykstra.

Connell said he was concerned that the CIA’s role in the proceedings was undermining the adversarial system and “democratic values” more generally.

“From where I sit, it certainly looks like it," Connell argued.

Nonplussed by Connell's anger, the judge acknowledged that – following an ex parte session with the government in a prior session of the case – he allowed prosecutors to use a device to communicate in real time with the CIA and other original classification authorities, or "OCAs," while court is in session.

Cohen said he did so to prevent spills of classified information that he is required to protect as a matter of law. No outside agency is providing litigation advice or strategy to the prosecution, he said.

“There's nothing nefarious about this,” Cohen said.

Only the judge and the court information security officer who sits to Cohen’s right can turn on the flashing red light and interrupt the public feed, which reaches the courtroom viewing gallery and remote closed-circuit sites on a 40-second delay. That happened several times during the eight days of testimony in January by James Mitchell and one day of testimony by Bruce Jessen, the former CIA psychologists who developed the “enhanced interrogation program” under which the defendants were subjected to abuse their lawyers say was torture.

Typically, when hearing a potential spill from a witness or from an attorney in oral argument, a member from the prosecution team will alert the judge to press the red-light button. (Defense attorneys can ask the judge to do so, as well.). Once the light is activated, defense attorneys and prosecutors huddle in the courtroom to discuss the potential spill and how the parties can move forward – either by determining it was not a spill, addressing the material in a more circumspect manner or by saving it for a closed session. The prosecution team also regularly has asserted a “national security privilege” that prevents defense teams from eliciting certain information in open or closed sessions.

Twice during the Mitchell and Jessen session, prosecutors asked for the red-light interruptions regarding testimony that turned out to not be classified; in another instance they could not adequately explain why they made the request, Connell argued on Wednesday. (Meeting with reporters last week, Connell explained that a member of his team noticed Dykstra studying the silver device intently during Jessen's testimony.)

All parties of the case have a shared “community” responsibility to prevent spills, Connell said, agreeing with Cohen. But he argued the judge should do so in a way that “promotes transparency” instead of driving suspicion.

There is a long history of that in the case.

In 2013, the CIA interrupted the proceedings by remotely triggering the red light, confounding the first judge on the case, Army Col. James Pohl. He later issued an order excluding any third-party interference. Defense attorneys have since lamented other intrusions, including the presence in attorney-client meeting rooms of listening devices that the government claimed were not actually in operation; the placement on a defense team of a former CIA interpreter from the black sites; and the FBI’s success in turning some defense-team members into government informants. Defense teams continue to seethe over Pohl’s 2014 ex parte decision allowing the partial destruction – “decommissioning” in government speak – of a black site that defense teams claimed could hold vital evidence. Defense teams learned of the destruction, and Pohl's order, close to two years later.

Cohen responded to Connell's motion by claiming that the commission was merely “leveraging technology” to prevent spills. He nevertheless acknowledged that his decision to authorize real-time contact with the CIA and other OCAs through an ex parte order had been a mistake given the “skepticism and distrust” between defense teams and the prosecution – which, he said, was the worst he’s seen in his 21 years as a lawyer and judge.

“I’m not saying it’s not warranted,” Cohen said.

The judge insisted that the defense teams were not being spied on, which would bring drastic consequences for the government if true, he said.

“I would dismiss the charges without thinking twice about it,” Cohen said.

Gary Sowards, the lead lawyer for Khalid Shaikh Mohammad, argued that the commission had created “an inadequate record” in response to his team's concerns over possible eavesdropping. Sowards said that his team was operating under an ethical conflict if it could not be assured its attorney-client communications were free of monitoring.

He argued that Cohen should order the government to provide better classification guidance instead of allowing the CIA a direct means in court for covering up an illegal torture program. He said, in fact, the CIA was leveraging 21st-century technology to cover up torture techniques developed in the 15th and 16th centuries.

Cohen disputed that the CIA and other OCAs were calling the shots, given that he and his security officer decided when to interrupt the feed. Sowards disagreed, pointing out that the judge cannot consult the CIA before pushing the button.

“There is no practical difference,” Sowards argued.

He said defense teams are entitled to a transcript of Cohen’s ex parte hearing in which he authorized the tablet.

“Not going to happen,” Cohen said. However, the judge said he would take “under advisement” Sowards’ request to obtain schematics of the courtroom that might assist defense teams in assessing eavesdropping concerns.

Cohen said the government did “a really horrible job” of covering up what happened at the CIA black sites in light of the “nine days of testimony on these allegations of torture” from Mitchell and Jessen during the January session.

After the tablet fireworks, Cohen turned to this week's other pressing issue: the request by James Harrington, the lead lawyer for Ramzi bin al Shibh, to depart the case over health reasons and the breakdown of the attorney-client relationship. Cohen heard oral arguments on Harrington’s request Tuesday.

Cohen granted the withdrawal, saying he was convinced that Harrington’s request was not a delay tactic but rather the product of difficult, emotional hardship and deliberation by the attorney. Harrington had “swallowed his pride” to acknowledge that he is no longer the same attorney as he was in his younger days, the judge said. Cohen concluded that he had “good cause” to grant Harrington’s request for health reasons. He said he did not need to reach the issue of the fraught relationship with bin al Shibh.

Cohen’s ruling requires Harrington to remain on the case until his team has a replacement “learned counsel” – one qualified to lead death-penalty defense teams – and to assist the new lead lawyer for a transitional phase of an as-yet undetermined length. Harrington will continue to review all of his team's written motions.

As part of his plan, Cohen cancelled the three-week March hearing but said he would not, at this point, push back his proposed January 2021 trial date. With the next hearing at Guantanamo now scheduled to start June 1, Cohen announced he will use the interim period to review pleadings and recent testimony to issue written findings of fact that could streamline information needed from future witnesses.

The judge began his oral ruling Wednesday stating that the Sept. 11 case – which dates to the May 2012 arraignment – was now on its strongest footing yet in terms of progress and chances of reaching a trial. Near the end, however, Cohen said he would consider severing bin al Shibh from the case depending on the status of a new learned counsel getting up to speed in the coming months.

Cohen told Harrington that he could call his wife and tell her that he would no longer be traveling to Guantanamo Bay, even though he was to remain on the case for a while longer.

"Judge, she's used to disappointment from me," Harrington said.

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.