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FBI ends probe that halted Guantanamo 9/11 case

May 22, 2014

MIAMI (AP) — An FBI investigation into a potential security breach that halted proceedings at the Guantanamo war crimes tribunal in April has ended without charges, the Justice Department said Thursday.

The FBI was investigating whether a member of the defense team for Ramzi Binalshibh, one of five prisoners at the U.S. base in Cuba charged in the Sept. 11, 2001, terrorist attack, had facilitated “unauthorized communications” abroad, Justice Department spokesman Brian Fallon said.

In April, a lawyer for Binalshibh disclosed that the FBI questioned the defense security officer assigned to their team, a non-lawyer who assists with the handling of classified evidence. The disclosure halted pretrial hearings in the case because of a potential conflict of interest for defense lawyers charged with defending both their clients and potentially themselves if they were targets of any investigation.

Fallon said in a statement that no lawyers are under investigation. A federal prosecutor informed the court Wednesday that the investigation was over and that the government believes there is no conflict and that the case should resume.

But Navy Lt. Cmdr. Kevin Bogucki, a military lawyer for Binalshibh, said all five defendants in the case and all their attorneys must still determine whether a potential conflict exists.

“We are going to have to carefully review all the facts ourselves and Ramzi (Binalshibh) is going to have to look at the facts,” Bogucki said. “We are not going to be able to accept the government’s statement at face value.”

The Justice Department did not provide details about the investigation, but Fallon said “The alleged facilitation of these communications may have constituted a federal crime and compromised national security.”

James Harrington, a lawyer for Binalshibh, said FBI agents questioned the security officer, a contractor employed by SRA International Inc. of Fairfax, Virginia, at his home and asked him about the activities other defense team members. He said they also earlier questioned another member of the defense team, a non-lawyer whose job he did not disclose.

Harrington said the Justice Department statement does not address what, if anything, they learned about the defense team between the questioning of the first defense team member in November and the second in April.

“They don’t address the fact that they were spying on the defense team for six months,” he said. “Our client needs to know that before he can make an intelligent decision.”

Bogucki, who was in Jordan to interview witnesses and experts to prepare for the long-delayed trial, said he cannot be certain about what prompted the FBI investigation of the security officer, who has left the case, or what communications came under scrutiny. “We have dealings with an awful lot of people in an awful lot of places around the world.”

A hearing is scheduled for June for the judge to consider the appointment of independent counsel for attorneys involved in the case who face a potential conflict because of the investigation.

Binalshibh and his four co-defendants face trial by military commission on charges that include terrorism and nearly 3,000 counts of murder in violation of the law of war for their alleged roles planning and aiding the Sept. 11 attack. They could get the death penalty if convicted. A trial date has not been set.

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