We’re back in session. The military judge, Army Col. James L. Pohl, calls proceedings to order. Of the five 9/11 accused, there are two absentees: Walid Bin Attash and Mustafa Al-Hawsawi. That prompts a voluntariness discussion, which proceeds according to the expected script.
First on our substantive agenda, and all of that agenda, really: the FBI’s recent interview of a defense security officer (“DSO”) assigned to Binalshibh’s team—and the alleged intrusion into defense functions arising from that interview. Recall that the FBI had been looking into the publication of “An Invitation to Happiness,” KSM’s goofball treatise on morality, culture, and religion. And, importantly, upon speaking with FBI personnel, the Binalshibh team’s DSO seemingly executed a non-disclosure form presented to him by FBI agents. This document apparently purports to create a relationship of trust between the counterparty and the FBI—or something similarly in tension with the DSO’s allegiance to Binalshibh and company.
Upon learning of this, defense counsel immediately asked for a pause in proceedings and an inquiry by the court, given the compromise of a staffer ostensibly aligned with the defense; the possibility of a conflict; and the chance that other defense staffers might have been similarly questioned. After litigation on Monday, the military commission orally ordered any defense team members to disclose any FBI contacts to defense lawyers—notwithstanding any suggestion to the contrary by FBI non-disclosure materials.
That brings us to today, and to AE292F—a motion filed late last night, and not yet appearing on the docket. The prosecution on Monday proclaimed its natural exclusion from any inquiry regarding the FBI security investigation; for that purpose, the government yesterday appointed a special trial lawyer, Fernando Campoamor-Sanchez, to represent the United States’ interests in court. Sanchez, in turn and through the vehicle of AE292F, has asked for a delay until April 21, when he’ll file a written response. Having that in mind, prosecutor Edward Ryan says he can’t really speak about any judicially supervised investigation into the FBI’s own investigation. Accordingly, his crew has taken as many steps as they can, he says, in order to remain insulated. He sits. And when KSM attorney David Nevin rises, Ryan immediately objects, given the functional absence of the United States’ representative from any litigation today. Ryan is overruled though, and Nevin begins, the court having inquired only about the best procedural way forward—and not about any substantive legal matters warranting response from the prosecution.