It is no secret that the Obama administration believes Khalid Sheikh Mohammed and the other 9/11 plotters should be given a civilian criminal trial in New York City, not a military commission in Guantanamo Bay, Cuba. The president pulled the plug on military commissions at the start of his first term (only to reinstate them later). The Justice Department announced in 2009 that KSM & Co. would be tried in Manhattan, provoking vigorous protest by the public and Congress that prompted the administration to back down. Attorney General Holder has repeatedly said the case should be in civilian court — even claiming that if the transfer to Manhattan from the military justice system had gone according to his plan, the terrorists would already be convicted and facing the death penalty.
I have responded to the attorney general’s claims on other occasions (including observing how brazen it is for someone who has spent years — both in and out of government — undermining military commissions to complain about how long the commission is taking). I’ve also opined that the attorney general’s maneuvering of two al-Qaeda conspiracy cases into civilian court in Manhattan strategically benefited the defense lawyers at Gitmo: They can now argue that the government is violating fundamental fairness by trying their clients in military court while other defendants charged with the exact same conspiracy have enjoyed the enhanced due process of civilian prosecution.
But is the Justice Department trying to get the case to civilian court by willfully sabotaging the ongoing military commission?
That is the suspicion of a number of family members of those killed in the 9/11 atrocities. It has been stoked by the revelation this week that the FBI has been investigating the Gitmo defendants and their legal representatives for possible intelligence leaks — a revelation that appears to have taken the military prosecutors and the presiding judge by surprise, stoking fears that the commission trial process could be imperiled.
To cut to the chase: I continue to believe Attorney General Holder, with his boss’s approval, is angling to have the 9/11 case tried in civilian court. I do not believe, however, that the ongoing FBI investigation is part of that equation. If the case lands in civilian court, it will be either because of the aforementioned legal ammunition the Justice Department has already given the 9/11 defendants, or because the administration will have engineered a swift, unannounced transfer — Obama and Holder have learned from their earlier mistake: Don’t tell people ahead of time that you’re bringing enemy combatant-terrorists to Manhattan for trial; just do it. A transfer would be immensely unpopular, so I would not expect it to happen until after the November elections. That still leaves plenty of time, since the commission currently does not anticipate having the military trial until January 2015.
Nevertheless, the FBI’s current investigation is not part of these machinations. To be sure, the families’ suspicions are warranted: the Justice Department, of which the Bureau is part, has long trashed military commissions. The FBI, however, has ample reason to conduct the investigation that is underway. The timing is unfortunate, and investigating charged defendants and their counsel is always fraught with problems. But the Feebs are trying to solve a new case, not sabotage the military’s congressionally authorized 9/11 prosecution.
Back in January, media outlets published a manifesto authored by KSM. The manifesto had been disclosed to the defendants in pretrial discovery, after which it was leaked to the press. As is common in terrorism cases, the document was not classified, though it probably should have been. Nevertheless, it was covered by the court’s nondisclosure order. To explain: Discovery of government files is required under due-process rules, but only to enable the defendant to prepare for trial, not for publicity purposes. Consequently, in cases with national-security implications, judges routinely order that discovery be provided for trial prep only; recipients are not permitted to disclose it outside the defense team.
Obviously, someone violated the court order. That is against the law. More significantly — and this is a point being missed in much of the coverage — the leak raises concerns that sensitive information helpful to our terrorist enemies could continue to be revealed publicly if the leaking is not stopped. Remember, minimizing the disclosure of intelligence to the enemy — a huge problem under civilian due-process rules — is a big part of the rationale for having military commissions in the first place. Thus, it is appropriate for the FBI to investigate. In fact, it often happens that a judge whose nondisclosure order has been flouted will ask that the FBI investigate the leak (which can mean investigating not only defense teams but government agencies, which do more than their share of leaking).
Of course, when the judge in a case announces that he wants a leak investigated, everybody knows the FBI is going to be asking questions of those who might have knowledge of the leak. In the case of the KSM manifesto, it does not appear that the judge asked for an investigation. That, however, is no reason for the FBI to stay its hand. Even in a civilian case before an Article III judge (i.e., a judge who is part of the independent judicial branch), the executive branch has a greater interest than the court in discouraging leaks. After all, the executive is responsible for national security and for the safeguarding of intelligence files. In a military commission, the presiding judge is a military officer — i.e., a member of the executive branch. Being solely responsible for the commission trial process, the executive branch has even more incentive to protect its integrity.
So the FBI properly undertook the investigation. It appears, though, that neither the commission’s presiding officer nor the prosecutors knew that the FBI was inquiring into the leak. Given the high profile and sensitivity of the case, I realize that must sound absurd, especially to non-lawyers. Yet, there are good reasons for it — reasons stemming from the tension between conducting a necessary investigation into wrongdoing by the defense team and protecting the accused’s capacity to prepare and present his defense. The latter is not a matter of endowing foreign terrorists with constitutional rights (which I have argued against many times). If a trial is to be a trial in the Western understanding of that term, an accused must be allowed to present such a defense as he may have to the charges. Otherwise, the trial is a sham and not worth having.
Investigating an indicted defendant and his counsel is complicated. But it often has to be done. As you might imagine, leaks of sensitive information are not the only kind of misconduct that can corrupt the trial process. Sometimes witnesses are intimidated or killed, evidence is destroyed, or juries are tampered with. Clearly, we cannot take the position that protecting the accused’s right to present a defense is so vital that defendants and their lawyers must have unqualified immunity from investigation while the prosecution proceeds. To do so, under the ironic guise of protecting the integrity of the trial, would encourage a lawlessness that would corrupt the trial.
The Constitution requires no such thing. Rights to a fair trial and to effective assistance of counsel do not attach until a person is formally accused of (generally meaning: indicted for) the crime under investigation. In practice, this means that once a defendant is indicted and being tried for Crime A (say, terrorism), the government may not question him or interfere in the relationship between him and his lawyer with respect to Crime A. But if the defendant or someone on his defense team is suspected of committing a new offense, Crime B — say, tampering with witnesses in the terrorism case — the indictment for Crime A does not provide any legal insulation from the government’s investigation of Crime B: The Crime A defendant and his counsel may be investigated just like any other Crime B suspects.
On the other hand, fundamental fairness requires that the accused be permitted to prepare his defense with the competent assistance of counsel, free from undue government interference. Thus, investigating agents and prosecutors typically go out of their way to avoid asking witnesses who know the defendant if they’ve heard anything about his trial strategy. This includes avoiding situations in which the prosecution team might even appear to be snooping into a defendant’s privileged communications with counsel.
But what if the FBI develops reason to suspect that the terrorism defendant, perhaps with the awareness or help of his lawyer, is, say, illegally leaking discovery material or intimidating witnesses? How do we balance the competing imperatives of investigating the newly suspected misconduct and avoiding interference in the defense against the already-indicted misconduct?
Usually, the government assembles what might be called a “clean team.” These are FBI agents and prosecutors who have nothing to do with the already-indicted case being handled by the trial team. They investigate the new misconduct but wall off the trial team’s agents and prosecutors. This ensures that if, while investigating the new misconduct, the clean team learns of privileged attorney-client communications or trial strategy, that information is not shared with the trial team.
From the prosecution’s perspective, this procedure solves the problem. But the defense, of course, has different interests and thus a very different view. Defense lawyers obviously do not like investigations of themselves or their clients; they cannot be expected to approve procedures that make such investigations feasible. They also know that by raising the specter of a government violation of their fair-trial rights — and getting the judge nervous about it — they may succeed in discouraging or even short-circuiting the government’s investigation. Defense lawyers further do not like being in a position of having to trust the probity of the government’s process — i.e., to trust that the clean team will conscientiously avoid informing the trial team about any useful defense strategy. Finally, defense counsel’s clients are often overwhelmingly guilty, facing a high likelihood of conviction and severe sentence — perhaps even a death sentence. In such a situation, the best hope of getting a conviction or sentence reversed on appeal is to sow into the record something that looks like a major violation of fundamental rights.
So how does all this play out? Frequently, the government will be zealous in keeping the trial team free of taint, while the defense will scream bloody murder about the investigation of the new misconduct — claiming it undermines the defendant’s confidence in his counsel, chills their communications, makes it impossible to mount a defense, exposes defense strategy, renders the trial hopelessly unfair, and requires a mistrial and sanctions against the conniving prosecutors, etc.
I believe this is what has happened in the military commission case at Gitmo. Needing to investigate the leak but also to insure against allegations that the Gitmo-trial team was snooping into the defense camp’s strategy, FBI agents may very well have concealed what they were doing from the trial team. They may also have kept the judge in the dark. In part, this is because the Bureau does not usually tell judges what it is investigating unless the assistance of the court is needed (e.g., for a search warrant); in part, it is also to avoid the claim that the trial process was prejudiced by the FBI’s turning the judge against the defense team. In addition, since the rap on military commissions is that the judge and prosecution are both part of the executive branch, the FBI may have feared that informing either would be spun as informing both.
So how did the defense team find out that at least some of its members were under investigation? Because of a “security officer” provided by the military commission for the defendants’ benefit.
Owing to the sensitive nature of the documents disclosed in discovery, the military court appointed a security officer (and several assistant security officers) to oversee defense counsels’ access. Contrary to several reports, which erroneously describe the security officer as a member of the defense team — and thus make it sound like the FBI is trying to monitor attorney-client communications — security officers are not part of the defense. They are contractors whose firm has been retained by the military. (See, e.g., Government’s Motion To Protect Against Disclosure of National Security Information [April 26, 2012], p. 12, describing “Commission Security Officer” as “the liaison between the owners of the classified information and those who are provided access to such information.”] This arrangement is a strategic advantage for the defense. Because discovery in a criminal case belongs to the government, the prosecution usually supervises defense access to it. But here, security officers, belonging to neither the prosecution nor the defense team, oversee access; that way, the prosecution does not find out what documents the defense is focusing on during trial prep.
But of course, security officers know who has had access to particular documents, and when. It is thus logical for the FBI to try to cultivate them as sources, since the government is rightly concerned about continuing leaks. In early April, FBI agents evidently visited the security officer who oversees access to discovery for the defense team representing 9/11 plotter Ramzi Binalshibh, seeking the officer’s ongoing cooperation. The security officer notified his employer, a Virginia-based company called SRA International Inc. Plainly, someone connected to the company alerted Binalshibh’s legal representatives, prompting his attorney, James Harrington, to complain to the military court.
Would it have been better if the FBI had alerted the judge and all the parties that it was investigating the leaks? Not if the Bureau believed catching a leaker in the act would be the best way to solve the case and discourage further leaking. That seems like a reasonable belief. The investigative terrain is a minefield, but the FBI appears to have tried to navigate it in a way that (a) avoided any possibility that the Gitmo prosecutors could be credibly accused of intruding on the defendants’ trial preparation, (b) kept from the judge knowledge of the investigation that could have been used to claim that he was biased and could not give the 9/11 defendants a fair trial, and (c) sought to recruit as a potential witness an independent contractor with knowledge of the handling of documents, not a lawyer or member of the actual defense team whose recruitment could have imperiled the commission trial by creating a conflict of interest with the defendant.
So yes, the Gitmo judge and prosecutors appear to be taken aback over this week’s revelations. That happens a lot in trials, which are unpredictable. And yes, the defense lawyers are predictably complaining that they are being “spied on” and that the commission process is tainted beyond curing. That is what defense lawyers do — and in terrorism cases, they do it more often than usual. And yes, the Obama administration is probably still scheming to transfer the 9/11 case to civilian court.
To my eye, though, the FBI agents are just doing their job . . . and we should hope they succeed.