Defending the enemy

When the Pentagon offered defense lawyer James Connell a potentially career-making case as lead defense counsel for one of the men accused of abetting the 9/11 hijackers, he initially said no.

Now, three years later, the Arlington-based litigator finds himself working out of a secure floor in a nondescript Pentagon office building in Rosslyn, Va., making a case to spare accused 9/11 conspirator Ali Abdul Aziz Ali from death.

ADVERTISEMENT
Sitting in the conference room — one of the few unclassified rooms on the entire floor  — Connell explained in a recent interview with The Hill how he came to change his mind and decide to defend a man charged with murdering 3,000 U.S. citizens.

Beginning in 2008, Connell said he played a “tangential role” in the defense of Ali and four other accused 9/11 plotters, including alleged mastermind Khalid Sheikh Mohammed.

All five men were in U.S. military custody as “enemy combatants” in Guantánamo Bay, Cuba, where they are currently awaiting trial by military tribunal.

But in 2009, Connell took a break from the 9/11 case, returning to his private law practice in northern Virginia. Pentagon officials reached out in 2011 with their extraordinary offer to be Ali’s lead counsel.

After seeing first-hand the enormity of the case during pretrial hearings in Cuba and calculating in all the political furor surrounding the tribunals, Connell declined.

“What I did think about was the scale of the military commissions,” he said, adding that the mental and physical toll that goes with taking a case like the 9/11 tribunals seemed just too much to bear.

But the opportunity for “a meaningful inquiry into the torture years” under the George W. Bush administration ultimately persuaded Connell to return and take the case.

To shine a light on alleged instances of torture against Ali and the 9/11 defendants at the hands of CIA and DOD officials would be, he knew, no easy matter, especially in a military court.

“Not a lot of people have spent a lot of time thinking about the intersection” of how to address those highly sensitive and classified national security issues in a legal system like the tribunals, he said.

But Connell got into law to make a difference and saw this as a chance.

He put his strategy into place in late January during pretrial hearings for Ali and the rest of the 9/11 conspirators in Guantánamo Bay.

He filed a motion to force the U.S. military to, for the first time, publicly discuss classified details of the secret CIA detention facilities, called “black sites,” in open court.

Debating that motion during open hearings could force government attorneys to reveal details on the black site operations and specifically the interrogation techniques used on detainees.

Connell’s motion is still being argued by U.S. prosecutors and defense attorneys during hearings in Cuba this week.

The controversy over interrogation techniques has been a hot one since it was first reported in the years following 9/11 that U.S. agencies were using sleep deprivation, waterboarding and extreme isolation in attempts to elicit information from suspected terrorists. 

Such methods have been both condemned as inhuman and defended as necessary to protect the nation. There is argument, too, over whether these methods constitute torture, and further heated debate over whether they are effective.

The 2012 movie “Zero Dark Thirty” reinvigorated public argument over torture and its effectiveness. In the film, a fictional character subjected to such extreme interrogation techniques at a black site is reportedly based on Connell’s client Ali.

The government claims that Ali was an active co-conspirator in the plot leading up to the 9/11 attacks. Ali claims he was a businessman who never knew he was dealing with terrorists.

It is still unclear whether definitive information about the government’s use of such extreme tactics against Ali and other terror detainees will ever come to light. 

Connell said the fight to get that information public is a microcosm of the extreme challenges he faces in mounting a defense for an accused terrorist being kept under lock and key more than 1,300 miles away. 

Just coordinating regular communication with Ali while meeting all the national security and intelligence classification issues tied to the 9/11 case, is “extraordinary in every sense of the word,” he said.

“The amount of bureaucracy is [simply] amazing,” said Connell, who had never served in the military nor worked closely with the Defense Department until taking the 9/11 case.

A graduate of Florida State University, then William & Mary Law School, Connell’s first foray as a defense attorney was for the Federal Public Defenders Office for Las Vegas in 1996.

He moved on to the Fairfax County Public Defender’s Office in northern Virginia in 1998, and to the private firm of Devine, Connell, Sheldon and Flood in 2000. It was his extensive work in defense cases involving the death penalty that won him professional renown, including a rating as a super lawyer by Super Lawyers magazine. 

In 2007, the government listed 14 terrorist conspirators from 9/11, including Ali, as enemy combatants and soon after charged them and readied them for trial by military tribunal. 

A lawyer who worked with Connell in Virginia during his days in private practice and who was also a part of the 9/11 trials reached out in 2008 to see if Connell was interested in playing a part.

The lawyer told Connell the defense teams needed a litigator with significant death penalty experience and thought he would be a perfect fit.

“My role was not all that great,” Connell said, noting he mostly wrote legal briefs for the defense teams and only traveled to Cuba once from 2008-2009.

When the Obama administration decided to restart the tribunals in 2011, the Defense Department asked Connell if he wanted to return to the 9/11 case, this time as a lead defense attorney.

Despite his initial misgivings about returning to Cuba, Connell has always viewed his profession in an idealistic light.

He said his path from law school to Guantánamo Bay was based on the premise that the rule of law is the strongest bond between government and its citizens. 

Practicing law, according to Connell, was his way of ensuring those ties remained strong.

“I went to law school because I knew that law is what defines the relationship between the government and the individual,” he said.

“If you want to influence that relationship, you pretty much have to be a lawyer,” Connell said.

That’s the sort of thinking that brought him back to Guantánamo Bay and the nondescript office in Rosslyn — and the legal motion that may throw new light on extreme interrogation techniques.