Defense attorney James Harrington appeared in court this week in a session cut short by a medical issue affecting the judge.
Guantanamo Naval Base, Cuba – Longtime defense attorney James Harrington paraphrased the oft-quoted line by Joseph Heller in “Catch-22” to make his point to the new military judge on the Sept. 11 case: Just because the five defense teams in the courtroom might sound paranoid, that doesn’t mean the government isn’t after them.
“There’s a real basis for our paranoia,” Harrington, the lead defense attorney for Ramzi bin al Shibh, argued on Monday near the start of the case’s 33rd pretrial session.
Harrington and other defense lawyers tried to convince Marine Col. Keith Parrella to delay this week’s hearings until the government provided more information about the FBI’s recent interrogation of a former paralegal from one of the defense teams. Lawyers said they needed the details to determine if they were operating under a conflict of interest and assailed what they said was another attempt by the government to disrupt their work through criminal investigations, intrusions and harassment.
Harrington himself was the target of an FBI investigation earlier in the case. His discovery in April 2014 that the FBI had turned one of his team members into an informant ended up derailing the Sept. 11 case for nearly 18 months.
“We have reasons to distrust the law enforcement agencies involved in this case,” Harrington said.
But Parrella was persuaded by information he received from Justice Department lawyers with knowledge of the ongoing national security investigation that no current members of any of the five teams were implicated. He said the defense teams’ fears and assumptions about the investigation should not delay progress in the case.
The session moved forward on Tuesday with oral arguments on whether a witness planned for Wednesday would testify in open or closed court. The witness worked as an interpreter for the CIA and then mysteriously appeared in court on Harrington’s team in February 2015; bin al Shibh and other defendants said they recognized him from CIA black sites, where they suffered years of abuse before their arrival at Guantanamo Bay in September 2006. The bizarre incident sparked years of litigation and is part of the long list of government intrusions regularly cited by defense teams.
Parrella sided with the government late Tuesday that the testimony would be completely closed. Hours later, however, the military commission announced that the rest of the session was cancelled because the judge had a serious medical issue and had to be evacuated off the island.
A spokesman for the commissions said the health issue was not life-threatening. Pretrial hearings are scheduled to resume with a two-week session starting March 18th.
Conflict Arguments Consumed Monday’s Proceedings
The interrogation of the paralegal for Walid bin Attash took place Dec. 20 in Fort Hood, Texas, while the paralegal was transitioning to a new assignment for the Army in South Korea. Agents questioned him for two-and-a-half hours and later administered a lie detector test, according to an affidavit by the paralegal. Most of the FBI’s questions sought information on bin Attash and his team, but they also asked about other teams, according to the affidavit.
Defense lawyers found Monday’s proceedings somewhat peculiar given that Parrella had already ruled on the matter. Last week, before traveling to Guantanamo for this session, Parrella conducted an ex parte or private session with members from a Justice Department “Special Review Team” that handles any litigation related to investigations into defense team members in the case. (The government team prosecuting the five 9/11 defendants are walled off from this portion of the proceedings and leave the courtroom when these topics are discussed.)
Convinced by the Special Review Team that no investigations into current team members existed, Parrella found that defense teams were not operating under a conflict. However, he also decided that he would hear oral arguments on the issue Monday morning.
Cheryl Bormann, the lead attorney for bin Attash, was expected to argue first given the FBI’s focus on her team during the interrogation. However, she was suffering badly from the flu and opted for her colleagues to go first.
Khalid Shaikh Mohammad’s lead attorney, David Nevin, told Parrella that he has been investigated in one form or another nine times since he began representing his client in 2009,
“It’s gone on too long,” Nevin said, referring to what he said was a “continuing effort” by the government to intimidate defense teams.
Nevin said that his team could not participate substantively in the rest of the proceedings if Parrella move forward before his team could fully explore the possibility of a conflict.
Harrington said that the FBI investigation from 2014 devastated his team, and that learning about the recent interrogation of the bin Attash paralegal was another “dagger” that inflamed simmering anxieties about criminal prosecutions and losing security clearances.
Both Bormann and Walter Ruiz, the lead attorney for Mustafa al Hawsawi, also argued the defense teams were ethically obligated to perform their own inquiry into whether a conflict existed. Though Parrella has ordered the Special Review Team to provide redacted copies of their pleadings to the teams – which the judge thought might ease some of the defense concerns – the prosecutors have not yet completed this task.
Parrella insisted that he understood the teams have a responsibility to investigate possible conflicts.
“But you don’t care about it that much,” Ruiz argued.
Remaining walled off, the prosecution team led by Army Brig. Gen. Mark Martins was not in the courtroom. Jocelyn Ballantine, a Justice Department lawyer with the Special Review Team, participated by video conference from the D.C. area. She said that that no current members of any of the defense teams are under investigation.
After a long lunch recess, Parrella issued a ruling consistent with the one he made last week – that the case can move forward. He said he kept an open mind and made his decision while fully appreciating the defense teams' valid concerns about past intrusions by the government.
Defense lawyers have a challenge against Parrella pending in the U.S. Court of Appeals for the D.C. Circuit. They contend he should be disqualified from the case for his past work for the Justice Department division that has prosecutors assigned to the Sept. 11 case. The appeals court declined to stay the proceedings this week over the issue.
Editor's Note: This article was published on the morning of Jan. 29 and updated with developments from later in the day.
About the author: John Ryan (firstname.lastname@example.org) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism. View our staff page.