9/11 Trial Grinds To A Halt As Evidence Surfaces That FBI Subverted Attorney-Client Privilege

from the hey,-it's-just-a-'privilege,'-amiright? dept

Mon, Apr 21st 2014 2:15pm — Tim Cushing

More evidence is being uncovered indicating that if the government wants access to privileged attorney-client communications, it will find a way to do so. This new incident, tied to the 9/11 trials, follows the news that the NSA gave Australian intelligence the go-ahead to intercept communications between an American lawyer and his Indonesian clients.

This previous incident resulted in the American Bar Association sending a letter to the NSA asking it to uphold the sanctity of attorney-clients communications. Gen. Alexander's response was basically "of course we respect that, but we grab so much stuff there's no way for us to guarantee we'll never intercept privileged communications." Not much in the way of reassurance there, and this following story shows there's even less reason to believe that investigative and national security agencies won't insert themselves into the attorney-client relationship.

Two weeks ago, a pair of F.B.I. agents appeared unannounced at the door of a member of the defense team for one of the men accused of plotting the 9/11 terrorist attacks. As a contractor working with the defense team at Guantánamo Bay, Cuba, the man was bound by the same confidentiality rules as a lawyer. But the agents wanted to talk.

They asked questions, lawyers say, about the legal teams for Ramzi bin al-Shibh, Khalid Shaikh Mohammed and other accused terrorists who will eventually stand trial before a military tribunal at Guantánamo. Before they left, the agents asked the contractor to sign an agreement promising not to tell anyone about the conversation.

With that signature, Mr. bin al-Shibh’s lawyers say, the government turned a member of their team into an F.B.I. informant.

There's not much more available detail-wise, as the defense's motion informing the court of this subversion is -- like most of the documents related to this trial -- under seal. But everything leading up to this new revelation indicates the government views this trial to be a forum where the normal rules just don't apply.

To begin with, this was never meant to be much more than a show trial. The special tribunal system was set up by President Bush after the 9/11 attacks, specifically for suspected terrorists. (Despite the stacked deck -- foreign terrorism suspects aren't afforded the same legal protections as US citizens -- the court has yet to secure a conviction in its 12+ years of existence.) This special system has resulted in several instances of access to attorney-client communications, some intentional and others (supposedly) more inadvertent.

Last year, the government acknowledged that microphones were hidden inside what looked like smoke detectors in the rooms where detainees met with their lawyers. Those microphones gave officials the ability to eavesdrop on confidential conversations, but the military said it never did so…

A botched computer update gave prosecutors and defense lawyers access to the other side’s confidential work. And the Pentagon acknowledged inadvertently searching and copying defense lawyers’ emails but said nobody read them.

And it's not just the defense that's bothered by these incidents.

Christopher Jenks, a Southern Methodist University law professor and a former military prosecutor, said he sympathized with the Guantánamo prosecutors, who appeared to have been just as surprised as defense lawyers by the appearance of the F.B.I. and C.I.A. in their cases.

But even more troubling is the fact that an agency supposedly uninvolved in the proceedings has gone so far as to subvert the judicial process altogether.

Last year, as a lawyer for Mr. Mohammed was speaking during another hearing, a red light began flashing. Then the videofeed from the courtroom abruptly cut out. The emergency censorship system had been activated. But why? And by whom? The defense lawyer had said nothing classified. And the court officer responsible for protecting state secrets had not triggered the system. Days later, the military judge, Col. James L. Pohl, announced that he had been told that an “original classification authority” — meaning the C.I.A. — was secretly monitoring the proceedings. Unknown to everyone else, the agency had its own button, which the judge swiftly and angrily disconnected.

After witnessing the amount of effort the CIA has made in order to thwart the release of the torture report, it's of no surprise that it tried to control the narrative here as well. It's also no surprise the agency feels it should defer to no one, not even a presidentially-directed tribunal.

The government does have a little more leeway, considering these aren't your normal, subject-to-due-process trials, but it's still problematic that despite the advantages of a quasi-tribunal set up by a presidential order in the wake of the 9/11 attacks, government investigative agencies still feel compelled to not only insert themselves into the process, but to subvert client-attorney privilege on top of it. All's fair in the War on Terror, it would appear, even when those suspects are safely locked up and going into their second decade of detention as the broken process labors on.

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Filed Under: 9/11, attorney-client privilege, cia, fbi, guantanamo, nsa, show trial

31 Comments

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Rikuo (profile), 21 Apr 2014 @ 1:23pm

If the government is so sure of the guilt of the suspects, that it can make its case and win...why all these shenanigans?
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Anonymous Coward, 21 Apr 2014 @ 2:23pm

Groklaw was right to shutdown because of this reason after the Snowden leaks came out. They knew if what Snowden was saying was true, then NSA (and others) were definitely spying on attorneys and their clients, too, in multiple cases (or all...)

http://www.groklaw.net/article.php?story=20130818120421175
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Baron von Robber, 21 Apr 2014 @ 2:26pm

At any moment...
... we will all have a visit with employees at the Ministry of Love, dispatched by the Ministry of Truth.
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Anonymous Anonymous Coward, 21 Apr 2014 @ 2:44pm

CIA & Domestic Activities
This may seem naive on my part, but I was under the impression that the CIA was prohibited from operating domestically. If I understand the process correctly, domestic, FBI, international CIA for clandestine and FBI for criminal investigation. If the CIA has stuff for Domestic, they tell the FBI, and the FBI deals with it.

Here we have the CIA and the FBI taking domestic action. And who should be prosecuting the CIA? The FBI.

I bet they come up with a secret interpretation of a secret law that was OK'd by a secret court to secretly prosecute in legal and otherwise secret ways that allow them to try to secretly force a government win in the 9/11 trials.

Shhhh.....
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Anonymous Coward, 21 Apr 2014 @ 2:54pm

It's like our government is now a social justice warrior
But there is nothing just about its actions.
"Check your Attorney-Client Priviledge, terrorist scum!"
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DannyB (profile), 21 Apr 2014 @ 2:56pm

Re: CIA & Domestic Activities
The CIA is prohibited from operating domestically.

The CIA has a secret definition of 'domestic'. The CIA is in full compliance with that secret definition.
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Anonymous Coward, 21 Apr 2014 @ 3:07pm

Rules? Laws? WTF are those even? Let's just do whatever the hell we want because who's going to stop us? The people? Don't make me laugh. They're all ignorant, fat couch potatoes.
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Anonymous Coward, 21 Apr 2014 @ 3:10pm

Re:
"The F.B.I. would not comment and military prosecutors said they knew nothing about the investigation. But the F.B.I. appears to be investigating how The Huffington Post got ahold of a 36-page manifesto that Mr. Mohammed had written in prison."

Investigating leakers. If the prisoner only had contact with his legal team then how could something he'd written end up at Huffpo. Implication is that someone on the legal team is co-operating in smuggling stuff out. Wasnt there another lawyer who was found guilty some other time? I seem to remember a similar case.
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Anonymous Coward, 21 Apr 2014 @ 3:28pm

Re: Re: CIA & Domestic Activities
CIA Definition of Domestic:

The use of mop and/or broom in cleaning a small enclosed area.
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Anonymous Coward, 21 Apr 2014 @ 3:57pm

Re:
Because it's not about guilt. It's all about a slow systematic dismantling of freedom and liberty.

Personally, at this point I consider the US federal government (and its respective agencies - TSA, NSA, DHS, DOJ, FBI, CIA) to be a far more serious threat to my safety than anything else. And I'm no longer willing to afford them the rights of confidentiality on anything anymore. I consider the risks of non-dislosure to far, far, far outwiegh the risk of disclosure in regards to pretty much anything.

To me Ed Snowden is the man Ron Wyden wishes he had the balls to be.
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Anonymous Coward, 21 Apr 2014 @ 4:01pm

Re:
When are we going to get that "sad but true" button?
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That Anonymous Coward (profile), 21 Apr 2014 @ 4:08pm

When you are willing to break the laws to prove how these laws help protect our freedoms... ummmmm

The greatest trick we ever pulled was getting the US to Godwin itself.
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Anonymous Anonymous Coward, 21 Apr 2014 @ 4:47pm

Re:
Yes we have, and Bin Ladin was only a messenger. The real culprit here is all the money in politics. So long as that is around, we, the so called couch potatoes, haven't got a chance. We keep on feeding greed for power, and it will keep on eating.
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They Already Know, 21 Apr 2014 @ 5:20pm

Here is all you need to know about the so-called war on ...
http://whatreallyhappened.com/WRHARTICLES/wrh_9-11_index.php
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Pseudonym, 21 Apr 2014 @ 7:14pm

Re: CIA & Domestic Activities
As has been pointed out many times, Guantanamo Bay is not "domestic". It is a legal grey area, and the government wants to keep it that way.
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Pseudonym, 21 Apr 2014 @ 7:18pm

Re: Re:
To me Ed Snowden is the man Ron Wyden wishes he had the balls to be.

To be fair, we're all better off having both Ed Snowden and Ron Wyden. Wyden would be no use to us on the run in Russia.
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nasch (profile), 21 Apr 2014 @ 7:38pm

Re: CIA & Domestic Activities
This may seem naive on my part, but I was under the impression that the CIA was prohibited from operating domestically.

They're prohibited from torturing people, too.
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Anonymous Coward, 21 Apr 2014 @ 7:39pm

Mr Cushing, there is no trial and there us no court. They call themselves Military Commission. We hanged such judges at Nuremberg for a reason.
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Rapnel (profile), 21 Apr 2014 @ 8:20pm

emphasis security
And so you would have me believe that the rule of law finds its strength only by breaking that rule and that real security is only realized when the thing being secured is under complete control.

And so too you would have me believe that we are protected by mothers that devour their young.

So, if we can't give these guys a trial, you know, a real one, because, well, secrets, then... why don't we just set them free and count to ten and then let a drone loose? Seems to me that it might cost a bit less and be quick and then we can get on to, you know, secretly justifying that.

Then are we so afraid that we will not present the accused with the evidence against them? And this because we dare not say how it was acquired or what rules have changed so that it could be acquired for fear of being caught breaking the rules? And you would have me believe this is fostering a secure and prosperous future?

Ya'll need a nice long vacation in Colorado or something because you *need* to chill out. Heck there might even be a federal pen you could rejuvenate in for a ten or twenty year getaway.

ffs
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Rekrul, 21 Apr 2014 @ 9:02pm

Last year, the government acknowledged that microphones were hidden inside what looked like smoke detectors in the rooms where detainees met with their lawyers. Those microphones gave officials the ability to eavesdrop on confidential conversations, but the military said it never did so�

Right. Just like how someone installed a hidden camera in the girls' locker room, but never actually watched it.
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Anonymous Coward, 21 Apr 2014 @ 9:24pm

It'd be sickly ironic if 9-11 masterminds ended up going free due to not having the patience or willpower to give due process. Of course then they'd take the completely wrong lesson from it if they did. Namely that due process is to blame rather than their idiotic subversion of due process. God they're like Nixon, cheating when they're already winning just because they can.
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That One Guy (profile), 21 Apr 2014 @ 9:46pm

Re:
Well you know the government mantra, 'It's not a violation of rights/privacy/lawyer-client privilege until someone listens/watches to it and the victim finds out'.
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AC, 21 Apr 2014 @ 10:18pm

9/11 lol
Just go look at pictures of the collapse of the towers, jet fuel does not burn hot enough to go through steel supports, and I am sure they did not make perfect 45 degree cuts in the pillars as well, but they are visible in alot of pictures. and why has the government never released the video of the so called plane hitting the pentagon, but we all know no plane hit the pentagon as you can not vaporize titanium, you need a vacuum to melt it at 800 degrees c. looks like the cia and fbi and your military are hiding facts from the public. and is it not weird that 1 day after rumsfeld announced the pentagon has misplaced trillions of dollars the computers that held that info was the exact spot the building was hit.

ya I know your all going to think that just another conspiracy theory, but check out the pictures yourself, ask why no video of the plane going into the pentagon? these are things that need to be answered before I will believe anything the government ever says again. also the plane that crasherd in the field, what happened to its engines as well? too much just disintegrated.

Conspiracy or government cover up?

you decide.
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Anonymous Coward, 21 Apr 2014 @ 11:26pm

Re:
Because it cannot win fairly.

And thus, the true terrorists are born. And Bin Laden was horrifyingly prophetic when he said that he had to do nothing more.
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Anonymous Coward, 22 Apr 2014 @ 10:53am

>>The court has yet to to secure a conviction in its 12+ years of existence

Duh, because those people have absolutely nothing to do with 911. Patsies, who probably know they are, with what amounts *probably* to a club Med in Cuba for false accused people. Your tax dollars at work.
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Bergman (profile), 22 Apr 2014 @ 10:59am

The constitution does not GIVE anyone any rights whatsoever, including the right to due process of law. Instead, it prohibits certain types of behavior by the government.

Saying that someone being tried by the government lacks due process rights is nonsense, because the government cannot deny due process.
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Anonymous Coward, 22 Apr 2014 @ 12:29pm

Re: Re:
The real Bin Laden never admitted to guilt of anything related to 911. The fat fake Bin Laden (who some here were toddlers when all this unfolded and probably never looked again the details online) in that set up video was so fake it was hilarious. Like his supposed may 1st 2011 being "raided on and killed".

Bin Laden did something horrible, the Kenya and Tanzania (the latter practically empty due to some special holiday there) embassy bombings. Had all the signs of a micro-nuke, who had nobody in al-quaeda make....just one of the few countries able to make them sell to him.
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Anonymous Coward, 22 Apr 2014 @ 12:33pm

Re: CIA & Domestic Activities
CIA introduced freebase cocaine (crack) in black american ghettos as an experiment, I knew of that at maybe 15 years old. Not American thought, that helps. The CIA just does whatever the f it wants.
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Ninja (profile), 23 Apr 2014 @ 4:32am

Re:
The fact that the EXECUTIVE set up a tribunal to judge the suspects should rise supernova-sized red alerts. That's for the judiciary to do if they find it necessary.

I'm not trying to diminish the current discussions but this should be the center of the discussion.
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nasch (profile), 23 Apr 2014 @ 6:39am

Re: Re:
The fact that the EXECUTIVE set up a tribunal to judge the suspects should rise supernova-sized red alerts. That's for the judiciary to do if they find it necessary.

It's quite apparent they feel that terrorism justifies almost anything, including altering the normal trial process. Is there even a law that lets them do this, or did they just decide to do it?
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Anonymous Coward, 23 Apr 2014 @ 8:01am

>military tribunal
haha, after 10 years of torture, they will be more than happy to admit that they killed over six million americans
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