GUANTANAMO BAY NAVAL BASE, CUBA — A judge agreed Tuesday to look into how FBI questioning of a defense team member will affect the trial of five Guantanamo Bay prisoners in the Sept. 11 attack.
Army Col. James Pohl, presiding over the trial by military commission, rejected a prosecution argument to go forward with a scheduled hearing into the mental competency of one of the defendants or deal with other pending matters in the case.
Pohl agreed with defense that he must at least explore whether the revelation of an apparent FBI investigation could create a potential conflict of interest for defense counsel who may be a target of federal authorities.
The judge said he would reconvene court on Thursday to consider the next step in the case.
He said he would order anyone working on the defense teams to inform the lead counsel for each defendant if they have been approached by investigators and said he would submit questions about the investigation to the FBI.
James Harrington, a lawyer for defendant Ramzi Binalshibh, said Monday that FBI agents questioned a member of his defense team about the release in January of an essay by the lead defendant in the case, Khalid Sheikh Mohammed, to two media outlets.
Prosecutors acknowledged in court papers that they triggered the investigation by alerting the FBI that the essay, as well as two letters written by Mohammed, had not gone through a required security review. Lawyers for Mohammed say the documents were released under the rules as they understand them.
The issue is the latest of many delays for the five, who face charges that include terrorism and murder for their alleged roles planning and aiding the Sept. 11, 2001, al-Qaida attack.