Defense lawyer James Harrington said that threats to security clearances take a toll on his team members.
The first pretrial session of 2018 started as scheduled on Jan. 8 but – as is typical with the Sept. 11 military commission – that was far from a sure bet several weeks earlier. As the early December session wrapped up, a spill of classified information cast doubt on whether lawyers from three of the five defense teams were facing an investigation, or at least a review of their security clearances, that might complicate their participation.
The trouble started last October, when a non-attorney member of the defense team for Walid bin Attash used an unclassified network to file one of the thousands of pleadings in the case. While the pleading itself was unclassified, it contained an attachment that was classified, which meant that the filing should have been made through a classified network.
The defense team for bin Attash, led by Cheryl Bormann, later explained in a court filing that the staff member had “inadvertently confused” the classified attachment “with another document.”
Unintentional spills of classified information are a regular part of life at the Guantanamo Bay military commissions system. There have been dozens of spills since the five 9/11 defendants were arraigned back in May 2012, some made by the defense teams and others by the prosecution.
Records from the Office of Military Commissions “indicate an average of approximately $100,000 per year is spent to remediate spills and unauthorized releases of classified information,” according to a Pentagon spokesperson. All told, the commissions cost about $100 million annually.
Usually, the consequences from a spill are of the pain-in-the-neck variety. A common experience for those working on the case is when staff from Washington Headquarters Services, the Department of Defense contractor that maintains information security for the case, is required to wipe computers and laptops that improperly received classified information.
What alarmed defense lawyers in October is that Washington Headquarters Services referred the Bormann team’s spill to the Department of Defense’s Consolidated Adjudications Facility, or CAF, which reviews classified spills to determine the security-clearance eligibility of those involved. The referral implicated all the civilian and military lawyers whose names were on the motion. That included Bormann’s team as well as lawyers for Khalid Shaikh Mohammad and Ramzi bin al Shibh, who joined the motion. (The teams for the other two defendants, Ammar al Baluchi and Mustafa al Hawsawi, did not join the motion and so were not implicated.)
A negative assessment of a lawyer’s role in the spill could jeopardize working on the case, along with any number of future career aspirations, particularly within the military. It also caused another wrinkle in the litigation that took up significant court time and even required some witness testimony during the Dec. 4-8 hearing.
David Nevin, the lead attorney for Mohammad, was angry that Washington Headquarters Services had determined in its referral that the defense lawyers appeared to have committed a “willful” violation of national security laws – without even asking him or anyone on his team what had happened. Only in the post-referral stage was he given a chance to participate in what he mockingly referred to as “due process.”
“This is like the police officer that has you in custody and says, ‘I’ve decided that you’re guilty of this offense. Is there anything you’d like to say?’” Nevin told the judge, Army Col. James Pohl, on Dec. 4.
Nevin argued that he was “laboring under a conflict of interest” given that he was being investigated by the same Department of Defense that was prosecuting his client. He wanted Pohl to abate the proceedings and assign independent counsel to advise Mohammad on the situation. (He also noted that it was the third time in the case he had to hire his own lawyer to advise him.)
James Harrington, the lead attorney for bin al Shibh, said the referral to CAF was “extraordinarily chilling to us.” He did not have to remind Pohl that an earlier FBI criminal investigation into his team delayed the case for about a year and a half, from April 2014 to October 2015, though no charges were ever filed.
The prosecution team, led by Army Brig. Gen. Mark Martins, was not in court to respond, as it is walled off from any litigation involving possible investigations into defense teams. Instead, a special trial counsel, Army Maj. Michael Lebowitz, was there to tell Pohl that the defense teams were overreacting and engaging in speculation.
Both Lebowitz and Pohl were suffering from a cold or flu bug that had made its way around the traveling court system in early December. Lebowitz labored a bit to make his point: The Pentagon adjudication process was “purely an administrative procedure” and not a law enforcement investigation.
“The conflict aspect pertains to where we stand right now,” Lebowitz said.
Nevin contended, however, that he was being accused of something that was a serious violation of criminal law. He also told Pohl that, in his earlier order on conflict issues, the judge acknowledged that he needed to take a “broader” view of the concept of potential conflict to include situations where defense team members face punitive actions like job loss or loss of security clearances.
Pohl agreed with the defense that the issue needed to be resolved. In a rare instance of good luck for the commission, the December session was allowed to move forward because it mostly involved oral arguments and witness testimony related to al Hawsawi, who was challenging the commission’s jurisdiction over him.
At the end of the week, the government called the deputy director of the Consolidated Adjudications Facility, Daniel Purtill, to testify by video link to help flesh out the CAF process before the commission returned its focus to al Hawsawi. Despite Purtill’s pleasant and helpful demeanor, confusion persisted over how exactly the system would work in this particular instance and how long it might take.
Under questioning by another of bin al Shibh’s civilian attorneys, Alaina Wichner, Purtill confirmed a concern of the defense teams: Even a “favorable determination” regarding a spill is not a finding of innocence per se.
“Guilt or innocence is outside the realm of the CAF’s responsibility,” Purtill said. “That is not what we do.”
Anybody with a security clearance “is subject to continuous evaluation,” he explained. And the referral to CAF would always be documented somewhere in a person’s file because adjudicators use a “whole-person concept” to make their determinations, taking everything past and present into account.
The explanation surely diminished the relief felt later in December when CAF favorably adjudicated the situation for all the attorneys involved, declining to take an adverse action towards their security clearances.
A spokesperson for the commissions could not shed light on why a referral to CAF was made in this particular situation because the Department of Defense “does not comment on specific personnel security information or records relating to individuals with DoD security clearances.” The statement also noted that litigation in the December public hearings only covered the issue “in part.”
“In addition to information on the public record, some matters relating to that litigation are ex parte and under seal, as requested by defense counsel and pursuant to the order of the military judge,” the statement read.
In any event, that potential roadblock to the January session was lifted.
The topic nevertheless lingered through the January proceedings, when the parties litigated whether the government could block defense teams from investigating past abuse of their clients at CIA black sites – and whether team members could be prosecuted if they ignore the government’s demands. Defense attorneys once again felt chilled by concerns they could get in trouble for doing their jobs.
The January hearing drilled into a core issue of the case: The government contends the roughly 14,000 pages of discovery provided on the former CIA program – mostly summaries and substitutions of original evidence approved by Pohl as adequate – are enough for the teams to prepare their defenses. Defense attorneys want more information and believe they should be able to interview individuals who played a role in the CIA program and to learn the locations of the black sites. In letters, prosecutors have warned defense teams against independently contacting any current or former CIA personnel or contractors, and also against traveling to suspected former black site locations and asking questions of potential witnesses.
The chief prosecutor, Army Brig. Gen. Mark Martins, confirmed in court that attempts to contact CIA witnesses could violate the Intelligence Identities Protection Act. James Connell, the lead lawyer for al Baluchi, told Pohl that he thought any criminal case against the teams for conducting investigations would be based within the broad scope of the Espionage Act.
Connell’s team already has conducted such investigations. At the closing press conference on Jan. 11, he said he wasn’t sure if the investigations would continue.
“We will be seriously reconsidering our investigative strategy,” Connell said, noting that he’s not always the one knocking on doors of potential witnesses. “I can’t simply be brave for myself. We have to think about all of the people who are involved in this system.”
In his remarks, Harrington said “these kinds of things” – the former FBI investigation into his team, threats to team members’ security clearances, warnings against doing investigations – “build and build and build” and eventually become a significant burden on the teams.
When it came to the issue of security clearances related to the spill, Harrington said losing his clearance would not have much effect on his career. (He recently turned 73.) But he said the issue is extremely worrying and “a real threat” to the lawyers who plan to have long careers after the Sept. 11 case.
“Sooner or later it takes a toll on you,” Harrington said. “You say to yourself, ‘Why am I doing this?’ You make a commitment to represent somebody, fulfilling your constitutional obligation and all of that, but after a while the system can wear you down. This kind of thing certainly can.”
The next session is scheduled to start Feb. 26. A trial date is not set.