The 9/11 Trial: Dispute Over Monitoring Defendants Continues

February 11, 2013

In this pool photo of a sketch by courtroom artist Janet Hamlin and reviewed by the U.S. Department of Defense, the self-proclaimed terrorist mastermind Khalid Sheikh Mohammed, left, confers with his lawyer Army Capt. Jason Wright, second from left, as co-defendant Walid bin Attash, second from right, also attends the hearing of the death penalty case against the five Sept. 11 defendants at the Guantanamo Bay U.S. Naval Base in Cuba, Monday, Feb. 11, 2013. (AP Photo/Janet Hamlin, Pool)

The revelation two weeks ago that an external monitor was remotely censoring the courtroom feed at the trial of 9/11 mastermind Khalid Sheikh Mohammed and four other defendants continues to reverberate here at Guantanamo.

Defense lawyers are trying to get as much information as possible about ways their communications are being monitored, both inside and outside of the courtroom.

Chief Prosecutor Brigadier Gen. Mark Martins has refused to disclose the identity or location of the mysterious authority monitoring the proceedings under repeated questioning from reporters shortly after the incident and again at a press conference last night.  Attorneys for the accused argue that the audio monitoring and the routine security review of documents exchanged with their clients violates attorney-client privilege and gives the prosecution the ability to eavesdrop.  Gen. Martins emphatically denied the last allegation, saying there was a firewall between the prosecution team and the government monitors who review the audio feed and documents exchanged between the lawyers and the accused.

Judge James Pohl appeared to show some skepticism about the defense team’s expressed surprise that such monitoring was taking place, pointing out signs on the courtroom tables warning the microphones were live.  Pohl also suggested it should have surprised no one that government monitors were scrutinizing the feed for leaks of classified information (though at the last hearing, the judge seemed surprised the monitor could interrupt the feed, and ordered a halt to that practice).

But James Connell, lawyer for co-defendant Ammar al Baluchi told the judge that a test with the court reporter revealed conversations could be heard through the microphone even with the “mute” button pressed.  Connell also said there was a second audio feed, containing all eight channels of audio from the courtroom, monitored by the external authority.

After Connell spoke, Cheryl Bormann, lead counsel for co-defendant Walid bin Attash, revealed that recording devices, disguised as smoke detectors, were concealed in the holding cells adjoining the courthouse, where the defendants are kept immediately before proceedings.   She said her client had asked directly if the device was for recording, but the guard assured them it was merely a smoke detector.  Borman stated that in 25 years of practicing law she had “never been in a position to have to ask, ‘am I being listened to?’” and that she found the situation, “rare, and incredibly disturbing.”

The conflict over monitoring the communication of the 9/11 defendants reveals a fundamental clash of good intentions at the military commissions here in Guantanamo: maintaining the sanctity of attorney-client privilege, while preserving national security and the personal safety of those working in and around the prison.

The government contends that unfettered access and exchange of materials would be far too dangerous.  On Sunday night, Gen. Martins cited a pre-9/11 incident involving Mamdouh Mahmud Salim, an associate of Osama bin Laden who was being held in federal custody for his involvement in the terrorist attacks on U.S. embassies in Kenya and Tanzania.  In 2000, Salim stabbed corrections officer Louis Pepe in the eye socket with a plastic comb sharpened into a dagger, leaving the guard with permanent brain damage.

Defense lawyers argue there has to be a way to maintain the confidentiality of documents exchanged with their clients while ensuring contraband materials — from paper clips and staples, to “incendiary publications” — do not reach the detainees.

Tomorrow, both sides will have a chance to argue for their definition of the correct balance between security and attorney privilege, but they did find some common ground today.  Both supported an adjustment to the audio setup inside the court, so that the microphones would be “push to talk” rather than “push to mute,” leaving the microphones muted as a default position.  The judge ordered the change, and the new setup will be ready to go by tomorrow.  Maurice Elkins, the Director of Courtroom Technology here will take the stand as an expert witness, to explain details of the audio technology in the courtroom, and presumably to explain how to ensure from this point that muted microphones are, in fact, mute.

Court will reconvene tomorrow at 9 a.m.

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