Photo of defense attorney James Connell by the Inter-American Commission on Human Rights.

Photo of defense attorney James Connell by the Inter-American Commission on Human Rights.

Guantanamo Naval Base, Cuba – Pretrial arguments in the Sept. 11 case resumed this week with lawyers continuing sharp exchanges over evidence from the CIA interrogation program that defense attorneys say subjected their clients to torture for more than three years.

On Wednesday, defense teams assailed a letter from the prosecution warning them against independently contacting “any current or former CIA employee or contractor,” requiring the lawyers to instead seek access through prosecutors.

“This prohibition on investigating by the government clearly interferes with the right to investigate and to prepare a defense,” James Connell, the lead defense attorney for Ammar al Baluchi, argued.

He told the judge, Army Col. James Pohl, that he should either dismiss the historic military commission, which dates to the May 2012 arraignment, or order the government to produce the witnesses.

Al Baluchi and the other four accused face the death penalty for their alleged roles in planning and financing the Sept. 11 terrorist attacks. All arrived in Guantanamo Bay in September 2006 after multiple years in CIA black sites.

The chief prosecutor, Army Brig. Gen. Mark Martins, countered that the government was merely following well established guidelines to provide the defense with relevant discovery while also protecting national security.

He noted in court, as the prosecution did in the letter dated Sept. 6, 2017, that Pohl already has approved summaries and substitutions of CIA black site evidence for the defense that omits the names of CIA employees and contractors, the locations of the black sites and certain dates. Martins said this evidence meets the required standard of putting the defense teams in “substantially the same position” as if they had the original evidence.

The letter explains that evidence provided to the defense refers to individuals involved in the black site program by unique identifiers such as “Interrogator A 1 C,” which the defense lawyers could use to submit interview requests to prosecutors. A CIA officer, with an FBI agent present, then would reach out to the proposed interviewees and inform them the process was completely voluntary.

Martins that the “very sensitive equities involved” would make it dangerous to have defense teams running around doing their own investigations and becoming “their own private attorney general.”

Returning to the podium, Connell expressed shock that a U.S. general would tell a judge that defense teams should not be conducting investigations in preparing their cases.

“I heard that, Mr. Connell,” Pohl confirmed.

The judge wondered what the sanction would be for violating the government’s proposed system.

“According to that letter – prosecution,” said Connell, who already has sent a memo to the prosecution rejecting its terms. He questioned in court if he should be read his Miranda rights.

He said defense teams have a clear professional obligation to conduct investigations.

“It is our core duty to investigate and speak to these witnesses,” Connell said.

David Nevin, the lead lawyer for accused plot mastermind Khalid Shaikh Mohammad, also rose to express his dismay that the government did not seem to understand either its own or the defense team's obligations. He said the U.S. Supreme Court has overturned numerous death penalty convictions for defense lawyers having failed to conduct thorough investigations.

“It is not some odd species of desire,” Nevin said.

Again, Martins rose to repeat his position: The prosecution would “unapologetically” balance the need for a fair trial with protection against the types of risks “that brought the towers down.”

This week’s brief session – involving just two days' worth of open court – is the 27th pretrial session in the case. A trial date is still not set. Over the past year or so, litigation over defense access to CIA black site evidence has created some of the most heated moments in court. In one pending motion, defense teams are seeking both the recusal of Pohl and the entire prosecution for an alleged improper destruction of a CIA black site. The government claims that a photographic rendition of the site provides an adequate substitution.

All five defense teams believe that past CIA torture taints any incriminating statements their clients later made at Guantanamo Bay during more traditional interrogations by FBI and Department of Defense investigators. During the December session, prosecutors provided the defense teams with a January 2007 FBI memo that revealed the CIA played a supervisory role in the Guantanamo interrogations. Lawyers for the defendants said the memo and witness testimony by one of the FBI interrogators about the CIA's role undercuts any claims that these sessions were “clean” from past abuse.

Those developments occurred during defendant Mustafa al Hawsawi’s challenge against the military commission’s personal jurisdiction over him. Connell’s client, al Baluchi, is making the same jurisdictional challenge, which requires the prosecution to establish during the pretrial phase that the defendant supported the 9/11 attacks and was part of al Qaeda.

Connell plans to call witnesses with knowledge of the CIA program to make objections to the statements his client made at Guantanamo. After court, Connell said that Pohl will need to resolve the dispute over accessing witnesses before moving forward with that phase of the jurisdictional hearing.

The next hearing is scheduled for two weeks starting on Feb. 26.