FBI military commissions investigation

UNCLASSIFIED//FOR PUBLIC RELEASE MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA v. KHALID SHAIKH MOHAMMAD; WALID MUHAMMAD SALIH MUBARAK BIN 'ATT ASH; RAMZI BIN AL SHIBH; ALI ABDUL AZIZ ALI; MUSTAFA AHMED ADAM AL HAWSAWI AE 292R (GOV) Government Submission by Special Review Team In Response To Emergency Joint Defense Motion 21 May 2014 I. Timeliness This submission is timely in light of the Sp~cial Review Team's request in submission I AE 2921 (GOV) for leave to provide the Commi~sion by 21 May 2014 with an additional ! submission addressing the issues raised in Emergency Joint Defense Motion AE 292. 2. Relief Sought The Special Review Team respectfully requests that the Commission deny Emergency Joint Defense Motion AE 292, which seeks an abatement of these proceedings and an inquiry into the potential existence of a conflict of interest burdening counsel's representation of the accused. The Special Review Team further respectfully requests that related defense motions and requests (see AE 2920) be denied as moot. 3. Burden of Proof The Defense, as the moving party, must demonstrate by a preponderance of the evidence that the relief sought in AE 292 is warranted. R.M.C. 905(c)( 1)-(2). Appellate Exhibit 292R (Gov) Page 1 of 15 Filed with TJ 21 May 2014 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE 4. Overview Defense counsel in their Joint Motion assert that they may suffer from a conflict of interest resulting from an investigation being conducted by the Federal Bureau of Investigation (FBI). As the government stated in its Public Government Submission by Special Trial Counsel In Response to Emergency Joint Defense Motion (AE 2921 (GOY)), a Special Review Team was assembled after the filing of AE 292 for the purposes of reviewing the matters alleged in that Motion and conducting any associated litigation in relation to AE 292. In AE 2921, the Special Review Team provided the Commission with a report on the status of its review as of 21 April 2014, and clarified, among other things, that the pertain to the Special Trial Counsel described the nature of the actual parte classified submission with attached supporting documents (AE 292-1 and AE 292K), and stated that the Commission's determination whether any defense counsel potentially suffers from a conflict of interest will be informed by the Special Review Team's ongoing assessment of the scope and status of the FBI which would be provided to the Commission by 21 May 2014. The Special Review Team now submits that there is no possible conflict of interest burdening defense counsel. The FBI on~ember of the issue, which was focused on Ramzi Bin al Shibh team, is now closed. In addition, the FBI is not investigating any defense counsel of record in this case. Accordingly, no defense counsel suffers from any conflict of interest arising from a criminal investigation, and no inquiry by this Commission is warranted. 2 Filed with TJ 21 May 2014 Appellate Exhibit 292R (Gov) Page 2 of 15 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE 5. Facts On 13 April 2014, the Defense filed an Emergency Joint Defense Motion (AE 292), alleging that members of the Defense may be subjects of an FBI investigation and requesting an abatement of the proceedings and an inquiry into the existence of a conflict of interest burdening defense counsel 's representation of the accused. AE 292. On 16 April 2014, the government filed AE 292F, in which newly detailed Special Trial Counsel filed a motion requesting the opportunity to provide the Commission, ex parte, with a factual submission by the close of business 21 Apri12014. AE 292F. On 17 April 2014, the Defense filed a Joint Response to Special Trial Counsel 's motion in AE 292F. AE 2920. On 21 April 2014, the government filed AE 2921, in which the Special Review Team explained that it is conducting a review of the issues raised in AE 292 and requested the ability to provide the Commission with an additional submission in 30 days. On behalf of the Special Review Team, Special Trial Counsel also filed ex parte submissions AE 292-1 and AE 292K. Additionally, Special Trial Counsel filed public notices of the ex parte filing of AE 292-1 and AE292K. On 23 April 2014, in AE 292-2, the Commission granted the Special Trial Counsel's motion for leave to file an ex parte submission. 6. Law and Argument A. Possible Conflict of Interest Arising from the FBI As stated in the attached declaration sworn by FBI Supervisory Special Agent- i n November 2013, the FBI received information that a - member of Bin al Shibh's defense team may have been involved in 3 Appellate Exhibit 292R (G ov) Page 3 of 15 Filed with TJ 2 1 May 2014 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE The alleged may have constituted a federal crime and compromised national security. Accordingly, the FBI gathered additional information. The FBI officially on 14 February 2014. opened ~ember of the Ramzi Bin al Shibh defense team. The investigation focused on The Emergency Joint Defense Motion seeking an abatement of the proceedings and an inquiry by the Commission rests on the assumption that there is a-investigation proceeding against defense counsel. See, e.g., AE 292 at I ("The defense respectfully requests that the Commission conduct a thorough inquiry into potential conflicts of interest arising from FBI investigation · id. at 7 ("all defense teams have a potential conflict of interest between their loyalty to their clients and their interest in demonstrating their innocence to FBI investigators"). Because there is no such investigation, there is no possible conflict of interest. The Joint Defense Motion should therefore be denied. An attorney who is under criminal investigation for the same or related offense as his or her client and by the same authority that is prosecuting his or her client may suffer from a conflict of interest requiring further inquiry by the court and, potentially, disqualification or a 4 Filed with TJ 21 May 2014 Appellate Exhibit 292R (Gov) Page 4 of 15 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE waiver of the conflict by the client. See United States v. Lowry, 458 F.3d 791 , 807-08 (8th Cir. 2006) (conflict existed because attorney "was the subject of a fraud investigation - the same type of claim for which [the client] was being prosecuted - by the same United States Attorney's office that prosecuted [the client]"); Armienti v. United States, 234 FJd 820, 824 (2d Cir. 2000) (actual conflict of interest may exist where lawyer "was being criminally investigated by the same United States Attorney's office that was prosecuting" the client); Thompkins v. Cohen, 965 F.2d 330, 332 (7th Cir. 1992) (stating that a situation in which the criminal defendant's counsel is under criminal investigation "can create a conflict of interest" because "[i]t may induce the lawyer to pull his punches in defending his client lest the prosecutor's offi ce be angered by an acquittal and retaliate against the lawyer"). See also United States v. Saccoccia, 58 F.3d 754, 772 (I st Cir. 1995) (conflicts based on investigation of counsel "tend to involve circumstances in which an attorney has reason to fear that a vigorous defense of the client might unearth proof of the attorney's criminality"); Briguglio v. United States, 675 F.2d 81, 82 (3d Cir. 1982) (evidentiary hearing was required where counsel was under investigation by the same United States Attorney's Office that was prosecuting the client and the client's name had been mentioned at the trial of counsel 's co-defendants). Where an attorney is under investigation for a different offense or by a different prosecuting authority, courts have generally found no conflict of interest. See, e.g., Blake v. United States, 723 FJd 870, 881 n.lO (7th Cir. 2013) ("[Defense counsel's] case was being investigated by a separate U.S. Attorney's office under the direction of the Department of Justice. Thus, [defense counsel] would have had no basis on which to fear that in representing [his client] in a case being prosecuted within the Southern District of Illinois he would provide the U.S. Attorney' s office in the Central District additional evidence about his own misconduct, 5 Appellate Exhibit 292R (Gov) Page 5 of 15 Filed with TJ 2 1 May 201 4 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE or that he was somehow incented to pull punches in [his client's] defense"); Moss v. United States, 323 F.3d 445, 473 (6th Cir. 2003) (no conflict where there was no nexus between an alleged Internal Revenue Service investigation of counsel and counsel's representation of the client); id. ("this Court has held that an actual conflict of interest does not arise where the client and the attorney are being investigated by different authorities"); Roach v. Martin, 157 F.2d 1463, 1479 (4th Cir. 1985) (no conflict where attorney ''was not under investigation by the same authorities that were prosecuting" client). And where there is no investigation of counsel at all, courts have held that there is no possibility of a conflict. This makes sense, as where there is no threat of prosecution, counsel necessarily has neither an incentive to pull punches nor a reason to fear exposing his or her culpability. For example, in Harrison v. Motley, 418 F.3d 750 (6th Cir. 2007), a capital case, the court of appeals stated: "Although a conflict of interest may arise where defense counsel is subject to a criminal investigation, see Taylor v. United States, 985 F.2d 844, 846 (6th Cir. 1993), we have noted previously that '[t]here lacks any controlling authority to support the proposition that an attorney'sfear of investigation may give rise to a conflict of interest."' /d. at 757 (quoting Moss, 323 F.3d at 473) (emphasis in Harrison). In Moss, 323 F.3d at 472-74, the court found no conflict of interest where the government made clear that it had not launched an investigation against the attorney. And in United States v. Montana, 199 F.3d 947, 949 (7th Cir. 1999), the court of appeals found no conflict where the lawyer was not under investigation. The court dismissed as "pure speculation" the argument that the lawyer "may have feared that he would be investigated if he didn't pull his punches," id. (emphasis in original), and added that because the lawyer "was not in jeopardy of being prosecuted," there was "no basis for an inference that he was intimidated by a threat of prosecution if he didn't pull his punches in 6 Appellate Exhibit 292R (Gov) Page 6 of 15 Filed with TJ 21 May"201 4 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE defending his client," id. See also Lafuente v. United States, 617 F.3d 944, 947 (7th Cir. 2010) ("If (defense counsel] was not investigated, or at least was unaware of any investigation, there would be no conflict of interest, and [defendant's conflict] claim would necessarily fail."); Thompkins, 965 F.2d at 332 ("presumably the fear [of retaliation by the government] would have to be shown before a conflict of interest could be thought to exist"); United States v. Jackson, Nos. 07 C 6409, 96 CR 815, 2008 WL 4814919, at *7 (N.D. Ill. Nov. 4, 2008) ("The trial judge held a hearing on the issue of conflict and found that Jackson's counsel was not under any investigation. Since the court determined that Jackson's counsel was not under investigation, it found that there was no conflict."); United Stales v. Hoffman, 926 F. Supp. 659, 678 (W.O. Tenn. 1996) (no actual conflict of interest where there was "no proof that [counsel] had been indicted or arrested for any criminal charges" and "no proof that there was an on-going criminal investigation relating to these potential charges against [counsel]"). Attorneys also may have conflicts of interest under the relevant professional responsibility rules. Generally, a lawyer shall not represent a client if there is a significant risk that the representation of the client will be materially limited by a personal interest of the lawyer. Model Rules ofProfl Conduct R. 1.7(a)(2). Where there is no criminal investigation of counsel, there is no risk that the representation of the client will be materially limited by the lawyer's personal interest in avoiding prosecution. For the reasons stated earlier, there is no conflict of interest under the professional responsibility rules. 1 As noted above, a FBI opened, the subject of which was member of the Ramzi Bin al Shibh defense team. has now been closed. A brief outline of the 1 All jurisdictions' professional responsibility rules are based on the Model Rules. 7 Appellate Exhibit 292R (Gov) Page 7 of 15 Filed with TJ 2 1 May 2014 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE explanation of its chronology, including closure, are set forth in the attached declaration of In addition, no defense counsel of record is Supervisory Special Agent under investigation by the FBI. In short, there is no pending FBI investigation. Accordingly, there is no possible conflict of interest burdening defense counsel. B. Because There Is No Possible Conflict of Interest, No Inquiry By the Commission Is Warranted. Where there is no possibility of a conflict of interest because there is no investigation of defense counsel, no inquiry or colloquy by the court is warranted. As the Eighth Circuit said in Lowry, '"(w]henever the court's inquiry reveals that a criminal defendant's attorney in fact suffers from an actual or potential conflict, the court has a subsequent "disqualification/waiver" obligation.' . . . If, however, the court finds that no conflict exists at all, the court has no further obligation." 458 F.3d at 807 (quoting United States v. Levy, 25 F.3d 146, 153 (2d Cir. 1994)). See Lafuente, 617 F.3d at 947 ("The government could obviate the need for an evidentiary hearing by simply confirming, through an affidavit, that [defense counsel] was never under investigation."); Moss, 323 F.3d at 473-74 (where attorney "did not labor under even a potential conflict of interest," no colloquy by court was required) (emphasis in original). See also Blake, 723 F.3d at 882 n.ll (requirement of evidentiary hearing under Holloway v. Arkansas, 435 U.S. 475 (1978), and Cuyler v. Sullivan, 446 U.S. 335 (1980), applies only where "the district court requires joint representation over a timely objection"). Here, because no plausible claim of a conflict exists in light of the absence of any investigation, no inquiry by the Commission is warranted. The government's representation that no investigation of defense counsel is pending is sufficient to resolve the conflict-of-interest issue. See Lafuente, 617 F.3d at 947. For the same reason, the Joint Defense Motion for Orders of Production (AE 2920}-which is explicitly grounded in an asserted need to "assess the 8 Appellate Exhibit 292R (Gov) Page 8 of 15 Filed with TJ 2 1 May 2014 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE possible conflict of interest" (AE 2920 at I; see also id. ("This motion identifies the witnesses and documents necessary to determine the nature of the investigation, and thus the nature of the conflict."))-should be denied as moot. Moreover, the conflict-of-interest analysis is necessarily forward-looking. Because the analysis is focused on whether defense counsel will pull punches in order to curry favor with the government or alter his or her strategy in order to avoid revealing his or her own complicity in crimes, see Blake, 723 F.3d at 881 n.IO; Montana, 199 F.3d at 949; Saccoccia, 58 F.3d 754, 772, an inquiry into the nature, scope, and methods of a closed investigation, is not warranted. 7. Oral Argument The Special Review Team does not request oral argument. 8. Witnesses and Evidence The Special Review Team relies on the attached declaration of FBI Supervisory Special Agent support of this submission. 9. Attachments A. Certificate of Service, dated 21 May 2014. B. Declaration by FBI Supervisory Special Respectfully submitted, //s// Fernando Campoamor-Sanchez Vijay Shanker Kevin Driscoll Maia Miller Heidi Boutros Oesch Special Review Team 9 Appellate Exhibit 292R (Gov) Page 9 of 15 Filed with TJ 21 May 2014 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE ATTACHMENT A 10 Filed with TJ 21 May 2014 Appellate Exhibit 292R (Gov) Page 10 of 15 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE CERTIFICATE OF SERVICE I certify that on the 21st day of May 2014, I filed AE 292R (GOV), the Government Submission by Special Review Team in Response to Emergency Joint Defense Motion and I served a copy on defense counsel of record by electronic mail. /lsi/ Fernando Campoamor-Sanchez Special Trial Counsel Office of Military Commissions 11 Filed with TJ 21 May 2014 Appellate Exhibit 292R (Gov) Page 11 of 15 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE ATTACHMENT B 12 Filed with TJ Appellate Exhibit 292R (Gov) Page 12 of 15 21 May 2014 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE Filed with TJ 21 May 2014 Appellate Exhibit 292R (Gov) Page 13 of 15 UNCLASSJFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE 2 Filed with TJ 21 May 201 4 Appellate Exhibit 292R (Gov) Page 14 of 15 UNCLASSIFIED//FOR PUBLIC RELEASE UNCLASSIFIED//FOR PUBLIC RELEASE 3 Filed with T J 21 May 2014 Appellate Exhibit 292R (Gov) Page 15 of 15 UNCLASSIFIED//FOR PUBLIC RELEASE