GUANTANAMO BAY NAVAL BASE, Cuba (CN) - The lead counsel for the alleged mastermind of the Sept. 11, 2001, attacks claimed Thursday that an FBI investigation of the defense attorneys has "sown chaos" in the proceedings, as another week of pretrial hearings drew to a close.
David Nevin, who represents Khalid Sheikh Mohammed, said he had never experienced such a probe in his 35 years as an attorney. The Boise-based lawyer in the past has served in the terrorism prosecution of Saudi student Sami Omar al-Hussayen and the Ruby Ridge case.
His latest client is accused of, and repeatedly boasted about, plotting the hijackings of airplanes that crashed into the World Trade Center, the Pentagon and a Pennsylvania field in attacks that killed nearly 3,000 people.
Mohammed and his four alleged co-conspirators face identical death-penalty counts of terrorism, hijacking, murder in violation of the laws of war, and other charges.
Since his May 2012 arraignment with four alleged co-conspirators, the litigation has revolved more around the defense attorneys' allegations of government interference in their work than the evidence to be revealed at trial.
On Thursday, Nevin tried to persuade the military judge, Col. James Pohl, to reconsider a decision not to investigate allegations that the FBI "made the decision to invade the defense team" in a probe that came to light in November.
James Harrington, an attorney for Mohammed's co-defendant Ramzi bin al Shibh, told reporters the FBI scrutiny began after a member of his defense team went to the bureau with a perceived security concern and became a "spy" for the agency.
While there was never a criminal investigation, a member of that team lost his security clearance, Harrington said.
Nevin said he later found out that a linguist on his team had been approached by the FBI months earlier, and that has been causing a "chilling effect."
Pohl has appointed a conflict counsel for the bin al Shibh team to see look into the matter, but he denied such relief to Mohammed's attorneys after the government promised that the probe had ended.
Attorneys for the 9/11 accused have long complained about government intrusions.
Last year, they complained of microphones hidden in smoke detectors of attorney-client meeting rooms, disappearing work emails, and a computer system in Guantanamo that operates via NSA satellite.
"Enough. It's not right for us to live under this cloud of suspicion," Nevin said. "We're all in the dark about why these crazy things happened."
Brig. Gen. Mark Martins, the chief prosecutor of the military commissions, said in prepared remarks after the hearings that the prosecution team "remains walled-off from learning about any privileged communications between the defense counsel and the accused" related to this controversy.
Reflecting this, he and the other prosecutors were not in court during these arguments.
While prosecutors have long denied any snooping, past court proceedings have revealed that other intelligence agencies have overstepped their bounds.
During one hearing last year, the judge found that the CIA set off the red light next to the bench of the war court, which denotes that the audio feed has been cut, off to prevent the release of classified information.
Rebuking the censors, the judge found that the excised remark was not sensitive, and he warned the agency not to interfere again.
Federal lawyer Kevin Driscoll of the so-called "Special Review Team" reiterated the government's position that such an investigation was unnecessary because Nevin had only the "speculative fear of an investigation."
"We have given the representation that counsel was never the subject of the investigation," he said.
The issue will likely be addressed again when the military commissions reconvene in October.