In late March, it was revealed for the first time that the United States government possessed tapes of phone calls made between alleged Al Qaeda members prior to the 9/11 attacks. The existence of the tapes was kept secret not because acknowledging them was a bona fide national security risk, but because the lawyers defending the alleged Al Qaeda operatives simply weren’t sure if the information was classified.
Confusion over whether something is “top secret” happens often in the U.S. Military Commissions in Guantanamo Bay, where the second iteration of the 9/11: Khalid Shaikh Mohammad et al. case is being heard. The U.S. has a penchant for over-classifying information, and when questioned opts for a “national security” excuse even when there is no substantial evidence that the release of the information might endanger the country. For the lawyers representing accused Al Qaeda members here in America’s most absurd court system, the government’s war on transparency is almost as endless as the so-called War on Terror.
Alka Pradhan is one such lawyer, working on the team of Ammar al Baluchi, who is accused of providing support for the 9/11 hijackers. Pradhan’s task is to find and highlight evidence related to her client’s torture. Pradhan, who could be described as Amal Clooney with a sharp Twitter presence, is one of the Commissions’ most vocal critics, highlighting not only the government’s history torturing defendants, but also the incredible burden the court’s isolated, island location puts on those attempting to do their jobs as defense attorneys.
That burden hasn’t slowed Pradhan, who made the arduous journey down to Guantanamo even while heavily pregnant. She’s pored over thousands upon thousands of pages of discovery documents, and has trucked ounces upon ounces of breast milk back from Guantanamo, the only place she can meet with the client. She even dressed her newborn in a mini orange jumpsuit with the phrase “Born with #Gitmoutrage” printed on the back.
“It's not idle work. It's really, really labor intensive,” Pradhan said of the investigation process. “So when we say, ‘Hey government, we've identified information that we know is relevant’ — to get such a huge proportion of discovery requests rejected by the government is incredibly frustrating.”
Being a death penalty lawyer for an alleged Al Qaeda operative clearly isn’t a glamorous job. It’s riddled with frustration, anger, and the ever-present fear of being prosecuted by the very government for which they work. Out of 6.2 million pages of materials related to the torture program of which their client was a victim, the Baluchi team has received 23,000 — less than half a percent.
Defense lawyers at the Military Commissions have different strategies for coping with the government’s incredible opacity. While the teams in the 9/11 case fight for access to torture records, lawyers in the case of Abd al Hadi al-Iraqi, one of Guantanamo’s most-injured prisoners, haven’t yet obtained full access to their client’s medical records. Al-Iraqi has undergone five spinal surgeries in the past two years while in U.S. custody, and requires the use of several kinds of painkillers, which his lawyers say severely limit his ability to lucidly stand trial. But not knowing exactly what ailments and injuries led to Al-Iraqi’s often bed-bound state makes his lawyers feel helpless.
“We have some records, I would venture to say even when a lot of records, but there is absolutely no question that we do not have a comprehensive set. We certainly do not have a comprehensive set of records from when he was in the black site,” Meghan Skelton, Al-Iraqi’s defense attorney, told me. “There's a general avoidance of getting to the bottom of why and how our clients come to experience what they are [experiencing].”
From the beginning, the 9/11 case has been riddled with Aaron Sorkin-esque legal twists and cheesy, dramatic absurdities that seem better suited for daytime reruns than the biggest terrorism case in American history.
The defense lawyers in the Al Qaeda cases have to calculate every public move they make; every tweet, comment to the press, and argument made in unclassified court. For the six years they’ve been working on this case, the Office of Military Commissions has failed to provide any clarity on exactly what information is classified, and what isn’t. As Department of Defense employees themselves, defense lawyers are in a tricky spot; they’ve been employed to ensure their clients get a fair and supposedly Constitutional trial, but their employer seems to go to great lengths to prevent that very thing.
Capital defense attorney James Connell leads the team of lawyers representing Ammar al Baluchi, who is accused of providing financial support for the 9/11 hijackers and helping them travel to the U.S. (Connell is married to Skelton, Al-Iraqi’s attorney). In the latest iteration of drama over secrecy, he has been fighting to keep a former CIA torture site interpreter’s testimony open to the public — or, at least, as “open” as having an unclassified hearing on the desert tip of an embargoed Caribbean island can be.
The saga of the blacksite interpreter started in 2015, when Ramzi bin al Shibh, another alleged conspirator in the 9/11 case, interrupted court proceedings to tell the judge that he recognized the man sitting next to him from a CIA black site.
“I cannot trust him because he was working at the black-site with the CIA and we know him from there,” al Shibh said matter-of-factly. In one fell swoop, a sleepy Monday court date turned into an unexpected breach in national security.
Here is why: Ostensibly, someone who had bore witness to al Shibh’s illegal torture had somehow made it onto the legal team, in an interpreter capacity, defending him. In calling attention to the issue, al Shibh had exposed the classified identity of an accessory to torture to a room that included a swath of uncleared civilians. He’d also identified a brand new witness in the years-long case.
Though the interpreter’s name is now technically out there (though extremely difficult to dig up, and thoroughly redacted court transcripts), the government has held the firm stance that his testimony should be completely classified. But Connell and Pradhan believe it is essential that at least part of the testimony remain open to the public.
“They have a right to know if the government has been involved in basically trying to sabotage the defense,” Pradhan said.
The defense teams constantly face the issue of seemingly arbitrary secrecy — even though they themselves have the highest level security clearance. It’s not just that the government is hiding information from the public, it’s that they’re hiding it from employees whose job it is to analyze all the evidence available to build a sound case for their clients.
The Baluchi team has received less than half a percent of the 6.2 million pages of materials related to the torture program of which their client was a victim.
The information the teams get from the government goes through a labyrinth of classification authorities at several different government agencies. Each agency makes a determination as to whether the defense “needs to know” classified information. “Need to know” status is informally determined by the various classification authorities. When information is released to the defense, it is often summarized or rewritten.
And while the defense lawyers can and do conduct their own investigations to supplement the government’s clouded disclosures, even information they obtain through open-source methods can inadvertently fall into a “top secret” designation — combining two inconsequential bits of unclassified information can, together, become top secret. The result is overcaution and self-censorship that directly undermines the Military Commissions’ so-called dedication to open and transparent proceedings.
If someone — a defendant, a witness, a lawyer — accidentally lets something top-secret slip, the consequences could include getting prosecuted under the Espionage Act, even if it’s a mistake. While that hasn’t happened yet, Connell, Pradhan, and other defense staff feel the looming threat each time they pursue an investigation outside of what the government has provided them.
“It's incredibly chilling. We basically assume that we are being surveilled at all times; through our phones, and our computers, and Lord knows how else,” Pradhan told me.
And if DoD employees like the defense staff are accused of a slip, but manage to avoid prosecution, those mistakes can get them stripped of their security clearance — a huge blow to their careers in government.
“It's one thing to be afraid of being criminally prosecuted, which is a great fear,” James Harrington, who represents Ramzi bin al Shibh, told me. “But for people who have security clearance and whose careers depend on security clearance — that's much easier to take away.”
And the government has continually kept the teams reminded of these threats. In 2013, a government official admitted that microphones disguised as smoke detectors had been placed in the supposedly secure rooms the defense teams use for client meetings.
“Are you aware that there are microphones in each of the cells?” David Nevin, who represents alleged 9/11 mastermind Khalid Sheikh Mohammad, asked Army Colonel John Bogdan, a military police officer who worked in the detention center in 2012 and 2013.
“Yes,” Bogdan replied.
“And are you aware that those microphones have the appearance of a smoke detector in the cells?” Nevin continued.
The government insisted that the listening devices were leftover from when the FBI used to control parts of the detention facility, and that no one was listening. But defense attorneys were predictably peeved by what seemed like a sinister disguise of a major breach of attorney-client privilege. And instances of similarly surreptitious behavior from the government kept dotting and delaying the case’s progress.
In 2014, Harrington revealed in open court that FBI agents had shown up on the doorstep of one of his staffers, asking him to reveal sensitive information about case material and to sign an NDA, an implication that they wanted to keep the interaction secret. The investigators who pursued the staffer claimed it was due to a suspicion that the team had mishandled classified information, though the details weren’t clear. The FBI probe brought proceedings to a screeching halt, as Harrington felt compelled to ask each member of his staff if they had been similarly approached by the FBI. Last December, when a former staffer on another team suspected he was being followed, the defense saw it as another apparent breach of trust.
“We basically assume that we are being surveilled at all times; through our phones, and our computers, and Lord knows how else.”
“You're sitting there, working next to somebody, and you're afraid that they are watching what you say, what you do,” Harrington told me earlier this year. “So you break down, perhaps giving in to the FBI or some other federal agency.”
“It doesn't take very much for you to live with great anxiety, and actual inability to do your job,” Harrington said.
In response to these allegations, John F. Stofer, a supervisory special agent with the FBI, filed a statement with the Military Commissions Trial Judiciary, assuring the court that no one was “under investigation.”
“I am not aware of any information indicating that any counsel of record or current known member of a defense team in United States v. Mohammad, et al, is currently under investigation by the FBI,” Stofer wrote.
The government also gave a sort of insipid response, and said the so-called surveillance was likely just part of routine checks, possibly related to security clearance. The defense didn’t buy it. Nevin told the newly appointed military judge that his team saw the invasive surveillance as a conflict of interest that prevented them from doing their job. Nevin himself has been investigated at least seven times, often based on allegations that he feels are baseless. The government even accused him of “willfully” spilling classified information.
Essentially, members of the defense are faced with a catch-22: either do your job as you believe it should be done, under threat of prosecution, or accept the government’s threats and limitations and fail your Constitutional duty to your client. Neither option is ideal for the defense. And there’s really no way of knowing how much information the government has tried to hide from both security-cleared employees like the defense, and the American public.
“Anytime you're busy having this kind of internal calculus, you're not doing your job,” Nevin said of the fear that comes with facing these daily threats from the government. “Your job is to graze all the way to the fence, to raise every argument, to fight every fight, to do it to the best of your ability.”