Group items tagged

The Sept. 11 trial judge and prosecutors struggled Wednesday to find a way forward out of the startling discovery that a former CIA linguist tasked to translate for an alleged 9/11 plotter earlier worked at a secret CIA prison.Defense lawyers, who say their clients were tortured in the agency’s secret prison network, asked to take sworn testimony from the man. They also asked the judge to halt the intended two-week pretrial hearing, the first since August, to conduct an inquiry and perhaps new background checks on defense team staff in the complex, five-man death-penalty prosecution. About 130 people, both military and civilian, work at the Office of the Chief Defense Counsel.“This has so decimated any trust on this team,” said defense attorney Cheryl Bormann, her voice cracking, “we can't go forward.”

Army Col. James L. Pohl, the judge, said he’d hear from prosecutors Thursday on the request to question the former CIA linguist who had been working temporarily for the team representing accused terrorist Ramzi Bin al Shibh since August. A new translator, who just got his security clearance on Friday, was flown in Tuesday from Miami. Meantime, defense and prosecution attorneys traded accusations over how the contract linguist came to sit beside Bin al Shibh on Monday in a courtroom where four of the five accused 9/11 conspirators said they recognized him from their years of secret detention.

War court Arabic language linguists come from a pool of names provided by approved Pentagon contractors. They require special security clearances that allow them to work with secret intelligence. Bin al Shibh’s lead counsel, Jim Harrington, said after court that he and a co-counsel vetted the linguist in August, and he had no idea of the translator’s previous CIA work before the alleged terrorist disclosed it in court Monday.“The problem is I cannot trust him because he was working at the black site with the CIA, and we know him from there,” said Bin al Shibh, a Yemeni accused of functioning as a 9/11 plot deputy.

But a close look at the nature of the information Tsarnaev’s defense team has repeatedly requested from prosecutors in motions to the court suggests Tsarnaev’s lawyers are trying to pry loose something about the government’s relationship with the Tsarnaevs prior to the bombing on April 15, 2013.The key to this relationship may lie in a store of information that the Russians delivered to U.S. investigators in the days after the bombing. Equally, it may be found in warnings Moscow delivered to U.S. investigators before the attack. Either way, the U.S. government has fought hard to keep the lid on what it knows.The defense team’s motive in asking for such information is clear enough: they are angling for anything that might convince jurors to spare their client’s life. But the government’s stonewalling raises serious questions about why it wants to keep secret what the Russians knew about the Tsarnaevs, and how and when this information reached the FBI and the CIA.

Already, Tsarnaev is facing an uphill battle because of a widespread presumption of his guilt—a presumption fed, in large part, by law enforcement leaks and an unquestioning media. The FBI has been waging an apparent war on witnesses, characterized by the scorched-earth tactic of intimidating, arresting, deporting, and, in one case, killing them. That has rendered them inaccessible to Tsarnaev’s defense.These hardball tactics appear to be just part of the government strategy of suppressing information in the case. The Justice Department’s trump card is the ability to withhold information based on national security claims. That is in addition to an overwhelming financial advantage.

The defense team has thus repeatedly had to ask U.S. District Judge George A. O’Toole Jr. to compel the government to release information. That has eaten up a lot of time critical in preparing the defense case.Not that Tsarnaev has been given much of it. One statistic tells the story: Tsarnaev’s team has had about half of the preparation time that defense lawyers in federal death penalty cases have been granted over the past decade—18 months versus a median of 36. So the prospects for getting the whole story behind the bombing laid out in open court look bleak.

The 9/11 trial judge abruptly recessed the first hearing in the case since August on Monday after some of the alleged Sept. 11 plotters said they recognized a war court linguist as a former secret CIA prison worker.Alleged plot deputy Ramzi bin al Shibh, 42, made the revelation just moments into the hearing by informing the judge he had a problem with his courtroom translator. The interpreter, Bin al Shibh claimed, worked for the CIA during his 2002 through 2006 detention at a so-called “Black Site.”“The problem is I cannot trust him because he was working at the black site with the CIA, and we know him from there,” he said.This week’s is the first hearing for the five men accused of conspiring in the Sept. 11, 2001 attacks — that killed nearly 3,000 people in New York, the Pentagon and Pennsylvania — since the public release of portions of a sweeping Senate Intelligence Committee study of the agency’s secret prisons known as “The Torture Report.”

Instead the issue became, apparently, a stony-faced translator who was sitting alongside Bin al Shibh in court when the hearing started. Lawyers for the alleged mastermind, Khalid Sheik Mohammed, 49, and his nephew, Ammar al Baluchi, 37, said they learned about the recognition just as court began. The judge ordered a quick recess, excused Campoamor-Sanchez and summoned the chief prosecutor, Army Brig. Gen. Mark Martins, for questioning.Court resumed briefly with the linguist missing. Martins sought, and got, a continuing recess until 9 a.m. Wednesday, to look into the issue and file a written pleading with the court. Pleadings are sealed for at least 15 days for intelligence agencies’ scrub of secret information.Mohammed’s attorney, David Nevin, asked Pohl to order the suspected CIA worker to not leave this remote base in southeast Cuba and to submit to defense questioning.

War court translators are provided by one of two Defense Department contractors paid by the Pentagon unit that runs the war court, called the Office of the Convening Authority for Military Commissions. It’s run by retired Marine Maj. Gen. Vaughn Ary, a former military lawyer. The contractors are Leidos and All World.Ary’s office provides a list of qualified translators to the Office of Military Commissions Defense unit, and, in the capital cases, each one gets a dedicated translator assigned to the team. Teams can object to the choice, and have done so in the past, as unsuitable, according to earlier war court sessions.The war court’s Chief Defense Counsel, Air Force Col. Karen Mayberry, said after the court session Monday that the translator sitting with Bin al Shibh in court was not permanently assigned to his team, or the 9/11 case. The Bin al Shibh team had lost its translator after an FBI investigation secretly questioned Sept. 11 defense team members. Monday’s translator, the one that Bin al Shibh said he recognized from a CIA prison, had worked for years on war court defense teams, but none with the Sept. 11 death-penalty case, according to Mayberry. Monday’s translator was filling in for this session because, although the Bin al Shibh team had chosen a new team translator, the new permanent translator had not yet gotten a security clearance, which can be a lengthy process.

Judge James Pohl, an Army colonel, ruled in July that no conflict of interest arose for defense attorneys from the FBI approaching a security officer for a defense team. The allegations surfaced in April, further delaying a complex, slow-moving case. Lawyers for accused Sept. 11 mastermind Khalid Sheikh Mohammed and four other suspects want Pohl to determine the extent of FBI contact with defense team members.Mohammed and fellow Sept. 11 suspect Ramzi Binalshibh were among prisoners who underwent torture by the Central Intelligence Agency, according to the report by the Senate Intelligence Committee released on Tuesday.

The report on the CIA interrogation program implemented after the Sept. 11 attacks said Mohammed was subjected to waterboarding, or simulated drowning, "rectal hydration" and sleep deprivation.

The defendants face possible death penalties if convicted.

The 9/11 trial judge on Wednesday froze pretrial hearings in a death-penalty case over a controversial Pentagon order requiring the judges to move permanently to this remote outpost until their cases are over.In a 10-page order, Army Col. James L. Pohl abated the prosecution of alleged 9/11 mastermind Khalid Sheik Mohammed and four accused accomplices until the Pentagon rescinds its move-in order.He ruled that the circumstances surrounding the controversial Jan. 7 relocation order “raise the issue of Unlawful Influence by creating the appearance of improper pressure on the military judge to adjust the pace of the litigation.”Defense lawyers in both the Sept. 11 and USS Cole death-penalty cases have alleged the move is an attempt to illegally rush justice, describing it as a pressure play designed to exile the military judges to Cuba, cut short pretrial hearings and move straight to trial. Unlawful Command Influence, or commanders meddling in the judicial function, is a crime in the U.S. military.

Prosecutors have defended the order, designed by a retired Marine general functioning as a war court overseer, as part of an effort to improve resourcing at the crude compound here called Camp Justice.Deputy Secretary of Defense Robert Work signed it within a month of getting a recommendation from the overseer, retired Marine Maj. Gen. Vaughn A. Ary. It stripped military judges hearing Guantánamo cases of their other duties, including presiding at U.S. service members’ courts martial, without consultation with the top lawyers of the Army, Navy and Air Force.So far none of the judges has obeyed it pending clarifications from their overall commanders, called The Judge Advocates General.

One 9/11 defense attorney, Jay Connell, said that Pohl “was right to pull the plug on the case” — and recited what he saw as a pattern of government interference.“The FBI has infiltrated a defense team, a former CIA contractor became a defense interpreter, and the Deputy Secretary of Defense has unlawfully attempted to influence the military judge,” said Connell, the death-penalty defender of Mohammed’s nephew, Ammar al Baluchi.