Khalid Sheikh Mohammed, the accused mastermind of the 9/11 attacks, in a Red Cross photo taken at Guantanamo Bay (left) and a photo (right) reportedly taken by US forces shortly after they first captured Mohammed in early 2003.
Last week, on the same day President Barack Obama launched his re-election campaign, his administration announced that it had officially reversed its decision to try the accused 9/11 plotters—including Khalid Sheikh Mohammed, the self-proclaimed "mastermind" of the attacks—in federal court and would instead prosecute them via the military commissions system.
But, as the military commissions gear up for what could be their first cases to end in death sentences, a shadow hangs over the lawyers representing these most unsympathetic of defendants. For well over a year, civilian and military defense lawyers representing so-called "high-value detainees" at Guantanamo Bay were caught up in a secret Justice Department investigation. (The agency won't say whether the investigation is still ongoing.) Can Guantanamo lawyers mount full and fair defenses of the 9/11 conspirators while under the pressures of a past or present DOJ investigation—and the threat of a future probe by the Pentagon itself, as some congressional Republicans have called for? We're about to find out.
The genesis of the DOJ probe dates back at least to the summer of 2009, when guards at Guantanamo found a series of photos in the cell of Mustafa Ahmad al Hawsawi, an accused Al Qaeda financier and one of KSM's four co-defendants. The photos, according to multiple reports, showed CIA employees suspected of involvement in the interrogation of high-value detainees, including al Hawsawi himself.
The CIA, unsurprisingly, was deeply alarmed. John Rizzo, then the agency's top lawyer, demanded an investigation. He later described the incident as "far more serious than Valerie Plame," referring to the Bush-era leak of an operative's covert status. He wasn't alone in his concerns. "This is an agency that has reasons to be concerned as to whether or not somebody's got their back," another high-ranking former intelligence official told Mother Jones last year. "It's always operating out there on the edge, not unlawfully, but generally at the farthest reaches of executive prerogative."
The Justice Department launched an investigation, headed by Donald Vieira, a former Democratic Hill staffer. Vieira soon found that the photos had been taken for a reason. Since any successful defense of a high-value detainee would likely require proving torture—and calling the alleged torturers, if they existed, to the stand—members of the Gitmo defense bar felt they needed to identify whom, exactly, had interrogated their clients.
In any other criminal case, this would normally be a breeze—defense lawyers generally know which cops or FBI agents questioned their clients and can call them as witnesses if necessary. But when you're dealing with the CIA, it's a whole different story. The details of many of the high-value detainees' interrogations are secret. Ditto the identities of the interrogators. The defense attorneys needed to identify the interrogators, and the prosecution wasn't interested in lending a hand. Susan Crawford, the convening authority (a sort of judge-like figure) for the military commissions, was a close friend of David Addington, the man known as "Cheney's Cheney." She certainly wasn't going to help.
John Sifton, a longtime human rights investigator, attorney, and firebrand, stepped into the breach. As Daniel Schulman and I reported last year, Sifton was the major force behind a highly controversial effort to identify, photograph, and, in some cases, tail CIA officials and contractors whom he and others believed had been involved in the torture of Guantanamo detainees.
Sifton's clients included the John Adams Project, a joint program of the American Civil Liberties Union (ACLU) and the National Association of Criminal Defense Lawyers (NACDL). In 2008, when the first military commission charges were brought against the 9/11 suspects—and the John Adams Project launched—none of the military defense lawyers at Gitmo had ever defended a capital case through to the penalty phase. The purpose of the project was to fund top-tier capital defense attorneys to assist military lawyers in defending the 9/11 plotters and other "high-value detainees" before the military commissions. It was named after the founding father who defended British soldiers in court in the wake of the Boston massacre.