Defense calls for probe into FBI questioning of 9/11 trial counsel

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The defense team for five people facing trial before a Sept. 11 war crimes tribunal claimed implications of the FBI's questioning of one of its members are "staggering" and called on the court to probe the incident aggressively, according to a motion unsealed on Wednesday.

In the emergency motion, the defense team stated that on April 6 two agents for the FBI's Joint Terrorism Task Force appeared at the home of a team member for one of the defendants and asked questions about the defense counsel's work. The motion said this raises the specter of a potential conflict of interest between the defense team's loyalty to its clients and its interest in demonstrating its innocence to the FBI.

The FBI contact with a member of the defense team surfaced last week at the trial at the U.S. naval base at Guantanamo Bay, Cuba. A lawyer for one of five defendants said that FBI agents questioned a member of his team, apparently as part of an investigation related to the handling of evidence. The revelation brought an abrupt halt into the already slow-moving proceedings, required the court to investigate and could mean the appointment of additional lawyers for the defendants if their attorneys face a conflict of interest.

The defense filed an emergency motion calling on the court to investigate. That motion, unsealed on Wednesday, provided more detail into the FBI visit to the home of a defense security officer, a private contractor who assists with the handling of classified material in the death-penalty terrorism trial.

"On Sunday, April 6, shortly after church, two persons identifying themselves as Special Agents of the Federal Bureau of Investigation Joint Terrorism Task Force showed up at the home of the defense security officer for" Ramzi bin al Shibh, a Yemeni accused of aiding the hijackers in the Sept. 11, 2001, attack, the motion stated.

"These agents had the defense security officer sign agreements creating a 'special relationship' with the FBI, and questioned him about the activities of Mr. bin al Shibh's counsel and the other defense teams."

The FBI has declined to comment on the incident.

Last week, Army Brig. Gen. Mark Martins, the chief prosecutor for the Guantanamo tribunals, said the prosecution was not aware of the questioning by the FBI until being informed by the defense.

The defense alleged that the two FBI agents interrogated him about his knowledge about the delivery of written communications of Khalid Sheik Mohammed, the self-proclaimed mastermind of al-Qaeda's 9/11 plot, to third parties. The lawyers also alleged that the FBI agents questioned him about any improprieties by the other defendants' defense teams. Mohammed and his four co-defendants face charges that include terrorism and nearly 3,000 counts of murder in violation of the law of war and could get the death penalty if convicted. A trial date has not been set.

The motion claimed the FBI's activities interfere with the role of the defense security officer, whom the court considers a member of the defense team and is prohibited from disclosing any information provided by the defense. The officer's name was redacted from the 27-page motion.

"At best, the FBI suborned the defense security officer to violate this responsibility," the lawyers wrote. "At worst, the FBI turned the defense security officer into a confidential informant for the government."

The lawyers, who asked the court to make oral arguments in the matter, said that if their clients are not provided counsel that is free from conflict of interest, it is as if they have no counsel at all.

The motion included a statement of support by James Harrington, attorney for bin al Shibh.

He said the security officer told him that the FBI agents "advised him that they were investigating inappropriate activities potentially involving defense counsel, the accused and third-party communications." Harrington said the FBI told the officer that he could not discuss their conversation at his house with other people and that the agents asked him to sign two nondisclosure agreements, which he did.

"The agents asked him specific questions about Mr. Mohammed's defense team and whether anyone had done improper things," Harrington said in his statement. "The agents asked him if they could talk with him at later dates to establish an on-going relationship with a member of bin al Shibh's defense team. He replied that he would do so, but only with counsel."

After the FBI visit, the contractor informed his employer, SRA International Inc., based in Fairfax, Va.