Posted: February 18, 2013
A pretrial hearing in the Sept. 11 case was suspended briefly last week to investigate allegations of eavesdropping. The commissions' chief prosecutor launched an investigation, and said no one was "listening, monitoring, recording" the proceedings. Defense attorneys seemed to take his word, which given the history of the commissions, is a baby step toward progress.
The most dramatic moment of the week's hearing at Guantanamo Bay's military commissions was when a one-legged man stood up and began to berate the judge.
The one-legged man, Walid bin Attash, is one of the defendants in the high-profile Sept. 11 case, and his complaint was a throwback to a time when the tribunal first opened.
He was upset because guards had taken the opportunity while he was in court to ransack his cell and take letters from his attorney. It had happened to three of the other Sept. 11 defendants as well.
"For the sake of Allah," bin Attash shouted at the judge as his attorneys tried to calm him down. "This is important."
The military commission system at Guantanamo Bay has been fighting allegations of providing second-tier justice since its inception. The Supreme Court even weighed in on the problem, saying the courts established by the Bush administration to try terrorists at Guantanamo were unconstitutional. Congress then tried to reform the system, putting in place rules that made the commissions a hybrid of the military court-martial system and federal courts.
But snafus, like last week's searches, continue to occur. The letters guards seized last week were in what's called a "legal bin." It is a clear plastic tub with a top — like something you'd buy at the Container Store. The bins aren't supposed to be searched because of attorney-client privilege. The communication between attorneys and their clients is supposed to be sacrosanct.
"In this system, every time we turn around we're finding that they are seizing letters that I have written to him and reading them," bin Attash's lawyer, Cheryl Bormann, told reporters at Guantanamo Bay. "They are seizing letters that he has written to me and reading them. ... I cannot explain to you how disruptive it is."
Monitoring The Hearings
What's more, the search came at a particularly sensitive time. Just days earlier, it became clear that a third party – possibly the CIA – was monitoring the hearings and, defense attorneys said, potentially recording them. That came to light when a special button meant to cut off audio outside the courtroom when classified information is revealed was accidentally hit.
Two people are supposed to be at the controls of that censoring button: the judge, Judge James Pohl, and a special classification officer who sits at his elbow. When the censor kicked in, the two men looked at each other with surprise. Someone outside the courtroom had piped in white noise to block the information.
Officials would only say later that the "original classification authority" — in other words the organization that classified the information in the first place — was monitoring the hearings. That's not so surprising. What was new was that the authority seemed to have the power to cut the audio, and it sparked fresh concerns that a third party might also be listening to sidebars between attorneys and their clients.
Days later, defense attorneys discovered other microphones in small interview rooms where the attorneys talk to their clients. The microphones looked like smoke detectors installed on the ceiling.
The judge ordered the third party to stop using any technology that gave them the ability to censor anything said in the courtroom, and the defense filed an emergency motion to stop the proceedings until an investigation got to the bottom of it all.
A Perception Problem
It falls to the chief prosecutor of the commissions, Gen. Mark S. Martins, to run that investigation which, he said, creates a bit of a perception problem.
"Usually, I keep this kind of thing at arms length, for good reason," Martins told reporters. "You don't want the prosecution being the one delving into questions of attorney client privilege."
Even so, Martins launched the investigation immediately.
"We wanna know what happened. I wanted to know what happened," he said. "And at the end of a week of investigation I said unequivocally that listening, monitoring, recording is not happening, and I still believe that."
Martins said the interview rooms were dual use — and often the place for interviews related to legitimate law enforcement investigations. That's why, he said, the microphones are there.
Defense attorneys seemed to take his word on that point. In fact, no one was talking about a cover-up by the prosecution, which, given the history of the commissions, is a baby step toward progress. The defense said it didn't think the prosecution was getting illicit information from recordings either.
"We do not have any evidence of that," said James Harrington, who represents Ramzi bin al-Shibh, who is accused of training the Sept. 11 hijackers. "And I don't think any of us have made any accusations that they have been."
While the prosecution may not be involved, defense attorneys still have a raft of questions: including if some other part of the government, such as the CIA, might actually be listening in on conversations they have with their clients.
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