Top Secret Guantanamo Program Expected to Affect 9/11 Case

(James Harrington, lead defense lawyer for Ramzi bin al Shibh, at an Oct. 30 press briefing following the most recent hearings.)

Much of the intrigue in last month’s hearings in the military commission against the five Sept. 11 defendants at Guantanamo Bay was the revelation and repeated mention of a top-secret government program involving the detainees held at the Camp 7 detention facility.

Prosecutors and defense attorneys cannot comment on the nature of the program. However, with pre-trial hearings set to resume Dec. 7 and scheduled to take place intermittently throughout 2016, the program is expected to surface repeatedly as defense lawyers challenge various aspects of the government’s case against their clients, all of whom face the death penalty.

The existence of the secret program came to light at the beginning of the two-week session, on Oct. 19, when one of the defendants, Walid Bin Attash, told the judge he wanted to learn more about representing himself. Army Col. James Pohl then set about drafting a pro se advisement that would warn Bin Attash about the perils of doing so. By the next day, Judge Pohl had distributed a draft colloquy and asked prosecutors and defense lawyers for proposed edits.

The chief prosecutor, Army Brig. General Mark Martins, told Pohl that the draft order was “authoritative and sound” and that his side would only have “slight edits.”

But James Connell, the lead lawyer for Ammar al-Baluchi, saw a problem with the draft order. He told that the judge that he had been “briefed into” a secret program, referred to as “an alternative compensatory control measure,” or ACCM, that was relevant to a defendant’s ability to represent himself in this case. The process of learning about a secret program is commonly referred to as a “read-in” during the Guantanamo proceedings.

Connell came to court with the pleading, numbered 380b (for its place in the case's 3 1/2 years of litigation), but had not filed it with the court or distributed it to other defense lawyers because he was not sure who was cleared to read it. As far as he knew, Connell and other members of his team were the only people on the defense side of the room to have been briefed, along with the prosecution.

In fact, Judge Pohl himself was fairly sure he himself had not been “read into” the program.

“Your Honor, could I double-wrap the document and submit it to the trial judiciary to be kept in a safe?” Connell asked. “You don't have a copy of it for the record right now, is one of my concerns.”

Connell did not want Pohl to make any decisions on his proposed advisement without reading the 380b motion. But Pohl didn’t want Connell to hand it over.

“We will get to it when we get to it, but I don't want to take custody of a document I'm not authorized to read,” Pohl responded.

Cheyl Bormann, the lead attorney for Bin Attash, said that she would need to learn about the program. “Respecting Mr. Connell as I do, he would not be filing pleadings with you if they weren't relevant to this particular matter,” she told Pohl.

Connell held on to his document, though he was able to file and distribute the document by the start of the Oct. 22 hearing after Pohl and the defense teams received their read-ins. The exception was the team for Ramzi bin al Shibh, led by James Harrington, who had not yet received authorization from his client to sign the memorandum of understanding required to receive classified information in the case. (Harrington received authorization to sign the MOU on Oct. 25 and was subsequently briefed.)

In between the sessions, defense lawyers could not elaborate on the program other than to say it was relevant to a self-representation advisement and likely other motions in the case.

On Nov. 12, The Miami Herald reported that the program appears to involve comprehensive surveillance at the Camp 7 detention facility. Herald reporter Carol Rosenberg compared Pohl’s draft pro se order from Oct. 20 – before he had been briefed on the program – and after.

“You must assume anything you say in Camp 7 is not confidential and will be disclosed to the U.S. Government,” Pohl wrote in the updated version dated Oct. 23.

“Only when you are in Echo 2 will anything you say be covered by the attorney-client privilege,” he wrote, referring to the part of the detention facility where detainees meet with their attorneys.

It remains unclear if the program is different from or an extension of what has been previously reported, or surmised. The Herald article also notes that Daniel Klaidman’s book “Kill or Capture” discusses recordings made of detainee conversations in the facility’s recreation yard.

More generally, since the case began in 2012, defense lawyers have complained of intrusions into their client relationships, such as the seizure of legal materials at the detention facility and the earlier presence of listening devices in the Echo 2 meeting rooms. Martins has said repeatedly that prosecutors have never listened to attorney-client communications.

At a subsequent hearing, on Oct. 25, Connell gave a bit more background on his read-in. The proceeding also involved a brief discussion of whether all defense team members should receive a read-in to this particular ACCM. Walter Ruiz, lead counsel for Mustafa al Hawsawi, complained that not all members of his team had been read into the program, which he said put his client at a distinct disadvantage. Martins told Pohl that “special access” to an ACCM requires a “demonstration of a need to know” for each person. (He later told the judge that his team had conferred with Ruiz during a break to resolve the issue.)

“You know, I didn't pick this program off of a menu,” Connell explained. “I was advised by the prosecution that I had the need to know it. I made contact with the focal point for the program. It took months and months.”

Later that day, after he signed the MOU, Harrington suggested that the top-secret program could be related to what Bin al Shibh claims is going on in his cell.

At issue for Bin al Shibh at last month’s hearings was whether a past FBI probe into his defense team created a conflict of interest that he would have to waive, and also whether he was competent to stand trial. (Pohl eventually ruled that a conflict did not exist, and that Bin al Shibh was competent.)

Bin al Shibh has long contended that sounds and vibrations are being pumped into his Camp 7 cell, preventing him from sleeping, which Harrington has portrayed as a continuation of the torture his client suffered at CIA black sites before his transfer to Guantanamo in 2006.

Harrington has said that the government has always denied that the guard force is disrupting Bin al Shibh, just as prosecutors have always denied using surveillance to listen to attorney-client communications.

“All these things that have happened give us a good-faith basis to say that there may well be somebody else doing to Mr. Bin al Shibh in that camp that have nothing to do with the guard force,” Harrington said

He then referred to “disclosures” in the 380 litigation, but Pohl cut him off. “I want to be very cautious of talking about anything in 380 series,” the judge said.

But Pohl wondered: How could the guard force not know about the sounds and vibrations, if they were actually happening?

“They may be very sophisticated,” Harrington said. “They may be very low level. They may be just enough to set him off, just the same kind of things that happened to him years ago.”

He added: “It’s a very, very sophisticated program, and it's something that the ordinary person, such as a guard outside the cell with a steel door or something like that, may well not know anything about.”

David Nevin, lead attorney for accused Sept. 11 mastermind Khalid Sheikh Mohammed, said that his client had reported “a similar occurrence.” Nevin said he wanted to put a “placeholder” on the issue while he looked into it more, though he added “it’s not exactly 380.”

“It does seem that there is evidence out there that we need to mine,” he said.

“I hear what you are saying,” Pohl responded.

The top-secret program came up again on the last day of hearings, Oct. 30. That day dealt largely with witness testimony by two guards about Pohl’s temporary order barring female guards from touching the 9/11 detainees on their way to and from legal proceedings and meetings. That motion is scheduled to be dealt with again during the hearings scheduled for Dec. 7-11.

Pohl also allowed defense attorneys to provide new arguments on their motion to have the case dismissed for the alleged “defective referral” of death penalty charges by the military commission’s Convening Authority.

Ruiz briefly mentioned the 380b motion in listing his long litany of government behavior – including mistreatment of his client at CIA black sites and afterwards at Guantanamo Bay – that should bar the case from moving forward with the death penalty on the table. That motion is also on next month’s calendar.

At a post-hearing press briefing, Harrington mentioned the ACCM when discussing “ongoing discovery requests” his team has regarding the sounds and vibrations Bin al Shibh is experiencing.

“[The new program] will affect many of the pending motions and it certainly will affect that one,” Harrington said. “But that’s going to be a hard and long-term process also, I anticipate, in getting the information that we need.”

According to the most recent docketing order, the commission is scheduled to have oral arguments or receive evidence on approximately 35 motions between Dec. 7-11.