Lawyer in 9/11 trial cries foul over correspondence rule, death penalty decision looms

In this July 16, 2009 file photo of a sketch by courtroom artist Janet Hamlin, alleged September 11 co-conspirators sit with their legal teams inside the courtroom at Guantanamo Bay. Mustafa al Hawsawi is on the right.

In this July 16, 2009 file photo of a sketch by courtroom artist Janet Hamlin, alleged September 11 co-conspirators sit with their legal teams inside the courtroom at Guantanamo Bay. Mustafa al Hawsawi is on the right.  (Reuters)

The trial of 9/11 suspects has hit another roadblock. 

A defense lawyer at the Guantanamo Bay military courts says new restrictions imposed by the detention camp commander in Cuba are forcing him to "violate his ethical obligations" as a military officer, according to new federal court filings obtained by Fox News. 

The motion, filed in the U.S. Court of Appeals for the District of Columbia by Navy Commander Walter B. Ruiz, states that an order from Rear Adm. David Woods to systematically inspect all correspondence between the defense lawyers and the 9/11 suspects violates one of the most basic legal tenets -- attorney-client privilege. 

Ruiz wrote, "JTF-GTMO's actions here raise substantial constitutional and statutory questions respecting the ability of that command to issue orders that abrogate congressionally vested rights -- namely here, the right to effective representation." 

On at least three occasions since the orders were imposed in December, the filings state that alleged 9/11 conspirator Mustafa al-Hawsawi has refused visits from his legal team or visits were cancelled. This matters because of an imminent deadline in February to determine whether the death penalty will be sought in the 9/11 military prosecution. 

"As a result of these Orders, counsel for Petitioner is ineffective at this crucial stage of a capital case, in contravention of express Congressional intent under the Military Commissions Act," Ruiz wrote. 

Ruiz also seemed to hint the new rules, which require a Defense Department team as well as intelligence agents to review the attorney-client communications, show the commander is acting outside of his authority. 

"Simply put, the JTF-GTMO Commander is akin to the warden of a prison, where this facility holds approximately 171 detainees," a footnote said. "The Orders this warden has issued are not a function of his institutional oversight over the prison. ... if they were, these Orders would not be directed strictly at defense counsel, and would apply to more than the 12 or so detainees who are facing military commissions." 

According to an email obtained and posted by the ACLU, the top defense lawyer for the Guantanamo military commissions has told the attorneys who work for him that "they were ethically obligated to refuse to follow the rules." 

As for the motivation behind the new rules, Ruiz states that they have the effect of further delaying or stalling the military commission process altogether. Hawsawi, who is accused of organizing and financing in the 9/11 conspiracy, was first brought to Guantanamo from the CIA secret prisons in 2006 and charged in the military commissions under President George W. Bush in 2008. The Obama administration's decision to send the men to a federal court in New York was ultimately reversed in April 2011. There is no timetable for an arraignment in the 9/11 prosecution. 

Ruiz has apparently taken the extraordinary step of asking a federal court to intervene in the matter and support his motion for a preliminary injunction to block the correspondence rules because other legal avenues are exhausted or are not available to him as a military counsel. 

Lt. Col. Todd Breasseale, a Defense Department spokesman, said, "We are reviewing the opinion of the chief of Defense Counsel and we are aware of filings in federal court. We maintain that it is every bit as inappropriate to address our deliberative process as it is to discuss ongoing litigation."

As for the legitimacy of reviewing communications between the 9/11 suspects and their lawyers, Breasseale said "RDML Woods' order strikes the appropriate balance between the legitimate and important need for a detainee to be able to communicate with his counsel and prepare his defense to criminal charges, and the legitimate and important need for the command to ensure that both national security and detention facility security concerns are protected." 

Fox News Chief Intelligence Correspondent Catherine Herridge's bestselling book "The Next Wave: On the Hunt for al Qaeda's American Recruits" was published by Crown on June 21st. It draws on her reporting for Fox News into Anwar al-Awlaki , the digital jihad and the cleric's new generation of recruits -- al Qaeda 2.0.

Catherine Herridge is an award-winning Chief Intelligence correspondent for FOX News Channel (FNC) based in Washington, D.C. She covers intelligence, the Justice Department and the Department of Homeland Security. Herridge joined FNC in 1996 as a London-based correspondent.