Battle Over Protection of CIA Agents Pits Duty Versus National Security in Sept. 11 Hearings

Guantanamo Naval Base, Cuba – The battle over whether lawyers for the five men accused in the 9/11 terrorist attacks are entitled to interview CIA agents who participated in the abusive interrogations of their clients escalated as pretrial hearings resumed this week. While the defense teams claim they cannot effectively represent their clients without talking to CIA witnesses, the prosecution insisted that revelations of the agents' identities could lead to their deaths.

Prosecutor Jeffrey Groharing raised the dark scenario Monday morning when he asked the judge to think about the widow of a fallen agent.

“Their actions will undoubtedly result in people learning the identities of CIA officers,” Groharing told the judge, Army Col. James Pohl.

The assertion came as both sides raised the stakes – predicting dire consequences from the long-pending and increasingly bitter dispute over the extent to which defense teams can investigate the treatment of their clients at CIA black sites before they arrived at Guantanamo Bay in 2006.

All five defendants face the death penalty for their alleged roles in planning and financing the Sept. 11, 2001, terrorist attacks. Disputes over evidence and investigations related to what defense lawyers routinely describe as “the torture program” have consumed much of the pretrial litigation, particularly over the past year. Friday will mark the six-year anniversary of the May 2012 arraignment of the defendants at Guantanamo Bay. (More: Browse Lawdragon's coverage of the military commissions.)

The government has provided the defense teams with evidence that does not include the actual identities of the individuals involved in the CIA program. Now, prosecutors want Pohl to issue a protective order prohibiting the five defense teams from independently attempting to contact current or former CIA personnel that they suspect played a role in the interrogations. Prosecutors already have sent letters to the teams warning them against making such overtures. Defense teams contend the prohibitions are blatantly unconstitutional and gut the core responsibility of representing clients accused of capital crimes.

Groharing claimed the defense teams already have received enough evidence to compose “a vivid picture” of their clients’ experiences at the black sites. He reminded Pohl that the prosecution will not use statements from black site interrogations at trial, nor will it challenge defense portrayals of the brutality so long as they are “tethered to reality.”

Under the government’s proposed order, defense lawyers will have to make requests for interviews to the prosecutors who will then ensure that the prospective witnesses are notified that they can voluntarily participate. Groharing said the system strikes an appropriate balance between protecting national security and conducting a fair trial.

James Connell, the lead lawyer for Ammar al Baluchi, disputed the "appropriate balance" characterization and argued that the government had made its choice between two competing interests.

“They have decided that it is more important to protect these witnesses than it is to prosecute the case,” Connell said.

He said the prohibition on investigations were unnecessary because all defense team members are obligated to not disclose classified information. He argued that the proposed order was “unbelievably expansive” by prohibiting the contact of black site witnesses and any individuals “affiliated” with them.

The defense teams have received about 17,000 pages of discovery on the former CIA program. (The 2014 report on the CIA program by the Senate Select Committee on Intelligence relied on about six million pages of underlying information.) The vast majority of material the defense has received are substitutions and summaries of original evidence with the locations of the black sites and names of individuals stripped out. Pohl has approved these versions of the evidence as adequate, finding they put the defense teams in substantially the same position as if they had the original materials.

Defense lawyers contend that the level of detail is not sufficient and that further investigations are needed to more fully document the torture of their clients. They plan to use the evidence to argue for the suppression of the statements their clients later made at Guantanamo Bay, which the prosecution plans to use at trial; to file motions to have the case dismissed based on outrageous government conduct; and to argue against a death sentence if there are convictions.

Connell said that simple math disproved Groharing’s contention that the proposed system would work. Right now, CIA personnel from the black sites are identified to the defense teams by letter-and-number codes. The government has thus far contacted 28 of the individuals to see if they would speak with defense teams, and all 28 declined.

By contrast, Connell said, when operating independently his investigators have experienced about an 80 percent success rate in getting interviews with CIA personnel. However, his team has now stopped trying to find these witnesses in light of the government’s warnings against doing so.

After Connell's lengthy presentation, the other four lead defense lawyers all reiterated their claims made in prior sessions that the government does not understand how a death penalty case is supposed to be litigated.

David Nevin, who is the lead counsel for accused plot mastermind Khalid Shaikh Mohammad, said defense lawyers have an ethical obligation to thoroughly investigate the case and cannot simply rely on discovery provided by the government. He said death penalty cases get overturned on appeal when lawyers don’t investigate.

He added that the government’s prohibitions on investigations create a conflict of interest for defense teams and add a surreal flavor to the historic case.

“It’s like saying everything you know is wrong,” Nevin said.

James Harrington, for Ramzi bin al Shibh, told Pohl that witnesses would be more effective than "clinical" written accounts for the panel of military officers who will serve as jury in the case. He added that the defendants themselves may not be able to effectively testify due to the lasting effects of their trauma.

The lawyer for Walid bin Attash, Cheryl Bormann, said that one detail her team learned through discovery – that her client was at one point kept awake for 79 hours – would lead to several if not dozens of follow-up inquiries to learn a "blow-by-blow" account, including whether they kept him awake by hanging him in chains and beating him or by dragging him on the floor.

Pohl acknowledged some confusion over the government’s proposed protective order but did not rule from the bench whether he was accepting it or would require changes. Connell said that, under the governing statue, the government's motion for a protective order queues up a dismissal of the case or other serious sanction if Pohl rejects the proposal.

All five defense teams believe that Pohl should dismiss the charges or remove the death penalty as a sentencing option. Groharing said it is incumbent upon the judge to work with the prosecution to find "creative" solutions that protect national security while allowing defense lawyers to do their jobs. He also said that the prosecution has provided the defense teams with the names of 25 individuals they are free to contact independently because the individuals are already known to be associated with the CIA program.

The lawyer for Mustafa al Hawsawi, Walter Ruiz, said it’s likely the defense teams would have to do some “soul-searching” if Pohl approved the substance of the government’s proposal to decide if they could ethically continue to work on the case under such restrictions.

“This is no way to try a capital case,” Ruiz said.

On Tuesday, Connell proceeded with a separate motion to convince Pohl to compel the government to provide the identities of CIA personnel involved with the interrogation program. While Pohl has approved most of the torture discovery as adequate, Connell said that the government's synopses of the individuals who had contact with the defendants at the black sites did not go through the substitutions-and-summaries process.

Connell argued that the prosecution should provide the names of these individuals to the defense teams or submit the document to Pohl along with the source materials for the judge to assess the adequacy of the evidence. This motion also remains pending.