Why Is the Army Pulling a Key Lawyer From Khalid Sheikh Mohammed’s Defense Team?

The law, lawyers, and the court.
Aug. 26 2014 5:24 PM

Indefensible

Why Khalid Sheikh Mohammed’s lawyer is leaving the defense team—and the Army.

Army Major Jason Wright
Jason Wright in northern Iraq, where he served in 2007 and 2008.

Photo courtesy of Jason Wright

Tuesday is Army Major Jason Wright’s last day as appointed counsel for Guantánamo Bay’s most well-known detainee, Khalid Sheikh Mohammed. It’s also Wright’s last day in the United States Army.

In December of 2011, Wright was detailed to serve as one of two military-appointed lawyers for KSM, the purported mastermind of the 9/11 terror attacks and executioner of journalist Daniel Pearl. Mohammed—along with three co-defendants—faces trial before a military commission at the Guantánamo Bay Naval Base for his role in the attacks, and faces a sentence of death if convicted. Wright spent nearly three years working between 50 and 60 hours a week as a Judge Advocate General (or JAG) on the KSM case. It was the case of a lifetime.  

But in a letter dated Feb. 26 of this year, the Army notified Wright that they were taking him off the case. The letter required Wright to attend a nine-month graduate program in military law. Wright requested a deferral (which had been granted when he received the same order the year before), but this time the request was denied. In Wright’s eyes, the order clearly put him in conflict with his ethical obligation to continue representing his client, the third-highest ranking member of al-Qaida. When he followed up, Wright learned that even if he were to attend the graduate program, upon completion he would not be reassigned to U.S. v. Mohammed. His orders were short and unambiguous: either quit the KSM defense team and attend the graduate program, or resign from the Army.

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And so on March 26, 2014, after nine years in the Army, Major Wright tendered his resignation. This is his story.

Wright is a believer—or at least he was. He joined the Army post-9/11. He’s seen both sides of the “war on terror” firsthand, having served as an aide to an Army combat general in Iraq, then worked as a criminal defense attorney in Germany for two years before his assignment to the KSM defense team. Ordinarily, JAGs serve as prosecutors before they are detailed as defense counsel, but Wright went directly into defense. “I see more of a chance to challenge yourself as a defense attorney,” he told me.

Wright should be the poster boy for the JAG program at Guantánamo, rather than one of its most outspoken critics. He’s blond, clean-cut, and looks like he could be in a “Go Army” commercial during a Sunday afternoon football game. Over the last two and a half years on the Mohammed defense team, however, Wright’s understanding of how he can best serve his country has evolved. He sees it as a JAG’s duty not merely to secure convictions of alleged terrorists, but to uphold the American system of justice.  

“At least within this office,” Wright says of the Mohammed defense team, “there is very much the viewpoint that we’re paid by the government to challenge the government.”

Wright was selected for the team by David Nevin, a civilian attorney appointed as lead defense counsel by the Military Commission Convening Authority in June 2011. Nevin, who has extensive experience trying high-profile death penalty cases in state and federal courts, says he chose Wright from the applicant pool not only because of his professional experience, but because of his unique educational background: Wright was the first JAG to pursue an LLM (the legal equivalent of a master’s degree) in international human rights law from Oxford University. “I remember thinking that he would be an asset to our team because of a number of things,” Nevin says, “including his background in international humanitarian law.”

Nevin is the lead attorney on the case, but he views Wright as a peer and central member of the defense team, not just a junior lawyer he’s been assigned by the Army: “He is an excellent lawyer. A great team manager, organizer, thinker, just an incredible asset.”

The posting was a huge leap from Wright’s previous assignments. He’d only been a practicing JAG attorney for a few years, and while he’d already tried a half-dozen serious felony cases, none were even close to the magnitude of the KSM case. “At the time I thought my role would basically be limited to discovery analysis and drafting motions,” says Wright. “I didn’t think I’d have a prominent role arguing in court or otherwise.” But since his appointment, Wright has taken a central role on the legal team. He has represented Mohammed at every court proceeding since his arraignment in May 2012. Wright estimates he’s spent over 200 days in Guantánamo meetings with his client and attending court proceedings, and another 100 days in Europe and the Middle East attending capital defense training, developing a rapport with potential defense witnesses, and investigating facts crucial to the defense. “I certainly had moments when I’d wake up in the morning and it would take me about five seconds to remember where exactly I was in the world,” Wright says.

Khalid Sheikh Mohammed
Khalid Sheikh Mohammed is shown in this file photograph during his arrest on March 1, 2003.

Photo courtesy of U.S. News & World Report via Reuters

Wright’s client, Khalid Sheikh Mohammed, was captured in Pakistan in 2003 and held at various CIA black sites before being sent to Guantánamo in 2006. The first military commissions in Guantánamo were established by the Bush administration to prosecute detainees, but lacked the assurances of a fair trial under the U.S. Constitution and the Geneva Conventions. Defendants were prohibited from hearing much of the evidence against them, and hearsay evidence or admissions gained under torture were admissible. Several military prosecutors resigned in protest. The first commissions were invalidated by the United States Supreme Court in 2006. A revamped Military Commissions Act was enacted in 2009. This new version of the commissions strives for greater transparency and at least the appearance of a fair trial, including provisions affording more autonomy to defense attorneys.

In April 2011, Attorney General Eric Holder announced that Khalid Sheikh Mohammed would be tried under one of these new commissions. Brig. Gen. Mark Martins was appointed to prosecute Mohammed and his co-defendants. Martins fought to distance himself from the perceptions of illegitimacy plaguing earlier versions of the Military Commissions. He readily speaks to the media and invites journalists to attend pretrial proceedings at Guantánamo.

Despite Martins’ efforts, the KSM prosecution has been marred by intrusions into the proceedings by government entities, including the release of a half-million defense attorney emails to prosecutors, the discovery of hidden microphones placed by the FBI in attorney-client conference rooms, and allegations that FBI agents have been spying on defense teams. The Army’s reassignment of Major Wright away from U.S. v. Mohammed—which the defense team has portrayed as yet another symptom of lawlessness in Guantánamo—has only further diminished the appearance of legitimacy that Martins hoped to maintain. U.S. Air Force Lt. Col. David Frakt, who represented Guantánamo detainees Mohammed Jawad and Ali Hamza al-Bahlul under the Bush-era military commissions says that Wright’s removal doesn’t necessarily mean that Nevin and the defense team will be unable to continue to represent KSM. But he sees this whole episode as a missed opportunity to promote the inherent fairness of the commission system. “If ever there were a case to make an exception, I think this is it,” says Frakt. “This was an opportunity to enhance the perception of legitimacy by saying publicly, ‘We’re going to grant this deferment, and in fact we will allow him to stay on as long as necessary because we recognize that the defense function is just as important as the prosecution function.’ They could have turned it into a PR bonanza instead of a PR disaster.”