GUANTANAMO BAY NAVY BASE, Cuba — Military prosecutors involved the FBI on the issue of Khalid Sheik Mohammed’s self-published “Invitation to Happiness” commentary soon after his lawyers handed them the document last year, a court filing shows.
By last week, according to defense lawyers on the case, two FBI agents questioned a contract security officer on one of the defense teams and sought to enlist him as a secret informant.
At issue now for the judge, Army Col. James L. Pohl, is whether, as defense lawyers claim, the FBI incursion into pretrial preparation in the Sept. 11 case could compromise the integrity of the lawyers for the five men awaiting a death-penalty tribunal for the 2001 terror attacks.
Or, as the prosecution argues, the fact that a security officer involved in pretrial strategy for alleged 9/11 plot deputy Ramzi bin al Shibh answered questions from FBI agents about other team members, is not evidence of an actual conflict.
At Monday’s hearing, the judge pointedly asked the prosecutor, Army Brig. Gen. Mark Martins if his prosecution team was “aware of this visit” by two agents to the bin al Shibh team member’s house on Sunday, April 6, to question him after church. At issue, in part, was how the Huffington Post and Britain’s Channel 4 television got a copy of the Mohammed commentary.
“No, we were not,” Martins replied — even before the judge had finished his question.
Defense lawyers said Monday that Mohammed’s attorneys furnished unclassified copies of the document that offers 36 pages of the alleged 9/11 mastermind’s musings — on such far-flung issues as gay marriage and soldier suicide — to members of the defense and prosecution team inside the war court last year.
It wasn’t case evidence, and wasn’t so marked, as the defense lawyers portrayed it.
But a just-released March 3 emergency prosecution filing shows that prosecutors treated two copies as court evidence after defense lawyers handed them the document they said was entitled, “Statement to the Crusaders of the Military Commissions in Guantanamo,” on Dec. 20.
“Trial counsel provided both copies of the document to the Federal Bureau of Investigation to maintain as evidence in this case,” the prosecution’s emergency filing says.
The 42-page, emergency March 3 prosecution filing also noted that a search by the prison bureaucracy at Guantánamo determined that the military never cleared the 36 pages of commentary for release “as non-legal mail. No member of the Prosecution or FBI has provided these documents to anyone outside of these organizations.”
The prosecution filing had been under seal for more than two months. The only public information about the emergency prosecution motion was in a March 7 email from the prosecution team to Sept. 11 victim families. It said the motion asks the judge “to take action to ensure that the Commission process cannot be used to inappropriately disseminate propaganda.”
At the prison, spokesman Navy Cmdr. John Filostrat on Monday night replied to a question of whether the prison staff asked the FBI to investigate the document this way: “I am unaware of any investigation and won’t get into ongoing legal proceedings, anyway.”
Tuesday, a Pentagon spokesman said that while Martins did give the FBI the copy of the Mohammed document neither the chief prosecutor “nor the prosecution team had any idea that an investigation was launched.”
“He gave it to the FBI to maintain as evidence in event that there could at some point be an investigation,” said Army Lt. Col. Todd Breasseale, “and in the event that it is determined that releasing [Mohammed’s 36-page commentary] was unlawful.”