The Guantanamo Bay military commission hearing, Untied States v. Mohammed, et al., continued on Monday after a hiatus of a week and a half. As was the case in the al-Nashiri hearing held in the interim, just who could listen in on what was again at center stage, with defense counsel protesting that the courtroom feeds were recording their attorney-client conversations, and even more remarkably, defense counsel alleging that it now had evidence to show that even the attorney-client meeting rooms in Guantanamo are equipped with “audio monitoring devices installed in each of those rooms and they look like smoke detectors.”
The proof asserted by the defense is “a declaration filed by the Colonel who is the head of the Joint Detention Group” at GTMO.
Presiding Judge James Pohl kicked off this morning’s—ultimately very short—hearing by first addressing defense counsel’s joint emergency motion to remove the sustained barrier to attorney-client communication and prohibit any electronic monitoring and recording of attorney-client communication in any location.
To the surprise of many, Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and his four other co-defendants—Walid Muhammad Salih Mubarak bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi, all Dark Site Survivors—were present at the hearings.
The emergency motion was prompted by a disruption in the court two weeks ago, when someone other than Judge Pohl muted the audio feed to the gallery of press, NGOs, and the families of the 9/11 victims. Until that moment, Judge Pohl seemingly believed that he was the only person inside or outside the court with a “mute button” to be used for shielding classified information from the public.
Many questions quickly arose, the first being perhaps the most obvious: Who is “the Man Behind the Curtain?” How much can he hear? Where is he listening from? And, importantly, where and when does the listening stop?
The court, perhaps, moved closer to answering those questions at last week’s al-Nashiri hearings, when Judge Pohl rhetorically asked defense attorney Lt. Commander Reyes, who had raised the issues, “Does it surprise you that the government can monitor conversations across the world?” Thus, suggesting that “the Man Behind the Curtain” is likely the government—which is also the prosecution in this case.
Defense counsel has noted that the courtroom is heavily microphoned, and that it is not unreasonable to believe that attorney-client conversations are being monitored. And, as a consequence of these questions about monitoring, the defense has called into question the privacy in other areas of GTMO, supposed dedicated to attorney-client privileged communications.
Judge Pohl, for his part, stated in the al-Nashiri hearing that there had not been adequate evidence proffered that conversations could be monitored in the attorney meeting rooms by the prison, but noted that if evidence did arise it would require serious and significant remedies.
If there is some governmental agency or department listening in on the conversations between the defense and the accused inside and outside of the court, it would amount to a significant breach of attorney-client confidentiality under the Federal Rules of Civil Procedure and the Attorney Rules of Professional Responsibility.
Extension on the Emergency Motion
In a joint effort—but for different reasons—the defense counsel moved to extend their deadline to reply to the government’s response to the defense’s initial emergency motion. Mr. Nevin, defense counsel for Mr. Mohammed, spoke first. He began with a somewhat rattled admission of his surprise at the presence of eavesdropping. After contested dialogue with Judge Pohl, he further emphasized that he needed an extension to interview Captain Thomas Welsh, JTF-GTMO’s top legal advisor, and Colonel John Bogdan, JTF-GTMO Joint Detention Group, about the recording devices located in the court and in Echo II, the somewhat ironically named private attorney-client meeting room.
Judge Pohl, however, responded sarcastically, saying to Mr. Nevin: “You, the defense, filed an emergency motion and now you want to investigate the matter in a non-expeditious manner?
Before moving on, Judge Pohl established that he was going to bifurcate what he saw as two issues: One, that someone alien to the court was watching or listening in on the commission; and two, that the attorney-client privilege barrier is being breached. For the sake of judicial economy, he further bifurcated the latter issue into breaches occurring within the court and those occurring outside of the court. Today would deal only with those in-court breaches.
The Critical Fact
Mr. Connell, defense counsel for Mr. Ali, explained that he is entitled to an extension because of one “critical fact”—that the audio feed that the OCA (Original Classifying Authority—the person/agency granted authority to create new classified evidence by the President or designee) is not the same as the audio feed that the court reporter hears. Essentially, that there is a middle man or middle machine between the speaker and the public. Judge Pohl asked Mr. Connell how he knew that, and Mr. Connell explained with agonizing but illuminating precision.
In doing so, Mr. Connell drew a distinction between what is called “gated” and “pre-gated” audio. The former is the filtered version that the audio system picks up, and is the sound that the people in the gallery hear and the basis for what the court reporter types. Filtered sound is the sound of those speakers who intend to be heard—those who speak at a normal decibel, not a whisper. On the other hand, the “pre-gated” audio is everything that the 27 hypersensitive microphones in the courtroom pick up—everything above, below, or at normal decibel levels, every whisper, side conversation, or pin drop in either the front or in the back of the room— and even the whispers among defense counsel. Mr. Connell explained that he needed more time to answer the question: What can the OCA hear in the pre-gated audio?
Where there’s smoke there’s….
Seemingly pained for having to ask the question, Ms. Bormann, defense counsel for Mr. bin ‘Attash, ultimately came right out with it: “I have been practicing law for 25 years and never have I been put in a position where I have to ask the following: Am I being listened to when I talk to my client?”
She then ticked off three examples in which there exists “substantial circumstantial evidence” that audio monitoring in and outside of the courtroom is taking place. At least one of those examples will showcase tomorrow morning, when the court hears testimony from Mr. Bogdan, who allegedly stated in an email correspondence with Ms. Bormann that he knew there was monitoring equipment in the court and in Echo II for over a year. However, Ms. Bormann nearly shouted that she needed extra time, maybe even just two minutes for Mr. Bogdan to print those deleted emails, because the government wrongfully denied her discovery requests for them.
Importantly, as noted above, Ms. Bormann told the court that she had evidence to show that even the attorney-client meeting rooms in Guantanamo are equipped with “audio monitoring devices installed in each of those rooms and they look like smoke detectors.”
The proof asserted is “a declaration filed by the Colonel who is the head of the Joint Detention Group” at GTMO.
A Curious Concession
Brigadier General Mark Martins, Chief Prosecutor, offered a concession to the defense regarding the issue of in-court monitoring, offering an alternative solution, which was eventually granted by Judge Pohl. Prosecutor Martins suggested that the court delay defendants’ motion until Tuesday morning. During the interval, the prosecution will have the “push to mute” feature of the audio system in the courtroom, and just the courtroom, changed (or fixed—depending on what you believe) to a “push to talk” feature, which would make the status quo for the microphones “off” until defense counsel activated them by pushing the “on” button to speak.
Mr. Martins did not explicitly admit that OCA is monitoring the court. Nor did he explicitly admit that the audio system was designed with the purpose of giving OCA a perch from which it could oversee (or, perhaps, more precisely,“overhear”) the hearings. But it seems curious that he was able to suggest a complete turnaround of the audio system, transforming it into something wholly other than what it was in less than 24 hours. And while the audio system’s original purpose was at least to “record well,” the question remains whether it was designed to, or forced by redesign, to “recording too much too well.”
Tomorrow’s hearing will continue with testimony regarding the defense’s emergency motion, attempting to answer the question: Just how much can the Man Behind the Curtain hear?
Josh Wirtshafter is a fellow at the Center for Policy and Research at Seton Hall University School of Law student. He is a member of the Class of 2014 and is a 2011 graduate of Franklin & Marshall College, where he majored in Religious Studies.