Although unclear at times, the issue for the second day of pre-trial hearings in United States v. Mohammed, et al., concerned the extent to which “The Man Behind the Curtain” could monitor attorney-client and attorney-attorney privileged communications from both inside and outside the courtroom. Three witnesses testified to this issue. Based on what was said— and sometimes what was not said— tremendous light was shed on what appears to be the potential for serious breaches of attorney-client and attorney-attorney privileged communications at Guantanamo Bay.
And the Gates Are Open…
The morning was a techie’s fantasy. Mr. Maurice Elkins, the program and design manager of the video and audio recording system in the courtroom, testified as to the specifics of the in-court microphone system. Ably guided by Mr. Connell, defense counsel for Mr. al Baluchi, Mr. Elkins drew for the record a distinction between “gated” and “pre-gated” audio. The former is the filtered version of speech heard in the courtroom and disseminated to the press, nongovernmental organizations, and victim’s families in the gallery. The filter is the “gate,” which only opens when a speaker’s decibel level exceeds a certain threshold. Basically, the gated feed 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 feed is all of the other noise absorbed by the 27 hypersensitive microphones in the courtroom—everything above, below, or at normal decibel levels— which is to say: every whisper, side conversation, or pin drop in either the front or in the back of the room; even the whispers among defense counsel. It is a soup of sound— but one filled with privileged morsels.
Mr. Elkins explained that the pre-gated feed is sent only to the court reporter, the interpreters, and to the Original Classifying Authority (OCA). He further clarified that the court reporter was the only one of those three, to his knowledge, to have For The Record Gold (FTR Gold) software, which has recording and untangling capabilities. Meaning, the court reporter could, if he or she was so inclined, record the pre-gated feed, isolate a particular sidebar conversation, focus in on the one or more microphones picking up that conversation, and increase its sound. Virtually any and all speech in the court is potentially understandable if one has access to the commercially available FTR Gold software.
What Mr. Elkins seemed to be saying is that in court, systemically, only the court reporter is given access to FTR Gold. Unsettlingly, Mr. Elkins testified, however, that “he does not know” what OCA’s capabilities are outside of the court. Presiding Judge James Pohl rehabilitated Mr. Elkins on this point, after Elkins had exhaustingly testified to that exact point—that “he does not know!”
At the climax of Elkins’ frustration, in attempting to prove that he had changed the in-court audio system from “push to mute” to “push to talk,” so as to lend some assurance to the defense attorneys that they could converse with each other and their clients unrecorded if they so desired, Elkins explained, “The distinction with this microphone from which I am speaking at is I have to push it to talk or I have to push to untalk.” Dramatically, Elkins released the talk button, expecting his voice to be cut off from the gallery, but in actuality, I could hear him say, loud and clear, “It’s not pushed right now. So you can hear me inside the courtroom but nobody else can hear me.”
Seemingly, the assurances to the defense counsel were overstated, audibly, and if the “Man Behind the Curtain” had even the Walmart version of FTR Gold when receiving the pre-gated feed, his/its eavesdropping capabilities would be virtually absolute.
Echo II: The Attorney-Client Meeting Room Where the Microphones Don’t Say “Speak into the Mic”
Captain Thomas J. Welsh, Staff Judge Advocate (SJA) for Joint Task Force at Guantanamo Bay Naval Base was brought to the stand next. Welsh testified about his knowledge of audio monitoring capabilities outside of the courtroom—specifically in Echo II, the principle attorney-client meeting room. Among other things, he denied that the microphones in Echo II were concealed. His reasoning: just because it looks like a smoke detector does not mean that it is a smoke detector. Eventually he conceded that Echo II’s microphones are far from being categorized as readily identifiable recording devices, and that they did not look like the “speak into the mic” microphones in the courtroom.
Capt. Welsh testified that upon first assuming his position as SJA, he was unaware that Echo II had audio recording equipment. But in January 2012, Welsh walked-in on a law enforcement agent in an annexed control room listening to the conversation between parties (defense, detainee and prosecution) to the proffer of a plea deal in Echo II. On a number of occasions, Welsh essentially testified that he was surprised and concerned with what he had seen, and further concerned at the prospect that attorney-client privileged communications might be listened to. But when he brought his concerns to the attention of the system operators, he was advised not to worry because “they” certainly do not listen in on attorney-client communications there—only proffers and meetings with delegates from foreign agencies. Without a log system of the audio system’s use, Welsh’s inquiry stopped there.
If Welsh was as surprised as he said he was— and as concerned as he should have been—upon discovering the infrastructural capability for attorney-client privileged communications to be breached, one might think (or at least have hoped) that he would have conducted a more thorough investigation into the history and use of the Echo II microphones. As a Staff Judge Advocate, entrusted with the duty of military justice, one might ask where his duty lies.
A search of his emails for purposes of this hearing—where he limited the search to “monitoring” and perhaps “audio”— brought up a gem.
In an e-mail dated May 8, 2008 in anticipation of a press conference, John Eskelsen, an assistant judge advocate, asks his boss, Captain McCarthy, Staff Judge Advocate (a predecessor of Capt. Welsh) an interesting question.
The Defense Counsel questioned Capt. Welsh about the email while proffering both a question and what may be an explanation:
Question: “…it says that if you, meaning Captain McCarthy, the prior SJA, need an affidavit from me that we did not keep sound recordings, I’d be happy to give it.”
Capt. Welsh: “Yes, it says that.”
Question: “And would you agree with me that the implication of that statement is that sound recordings are made but not kept?”
After some examination Capt. Welsh stated that he “would leave it to the judge to read what he wants to read into it.”
The Logistics Order Has A Language Specification Requirement For a Reason
Mr. James Harrington, Learned Counsel for co-defendant Ramzi Binalshibh, unraveled a dispute over the intended enforceability of the 2011 Logistics Order. This Order, drafted by Captain Welsh, approved by Welsh, and intended to be enforced by JTF-GTMO, set forth the updated standard operating procedures that defense counsel must obey prior to meeting with their clients in Echo II. One of the many detailed procedures requires defense counsel to alert JTF-GTMO of what language they intended to speak during the meeting. Welsh brushed off the seriousness of this provision, saying that it is never enforced in practice.
It is obvious, however, that the only way to enforce this provision would be for the government to hire a translator to listen-in on the proceedings. Without any tracking or logging system attached to the use of the audio recorder in Echo II, the government could have been listening-in all along. It also calls into question whether they needed to know what language defense counsel would be speaking, in order to get a translator to listen in and monitor the conversation if the language chosen was something other than English.
Learned Hand Would Have a Problem with this…
This case has become chock-full-of-sneakiness. Or maybe concealing its intelligence-gathering mission has always been JTF-GTMO’s modus operandi. But it was not until now—the unveiling of the gated and pre-gated audio feeds, the smoke detector-looking microphones, and the curious SOP Orders—that the government’s subterfuge has become so public. Yet, in this case, the government has continued to argue that such intelligence-gathering motives have not resulted in an intrusion upon attorney-client or attorney-attorney privileged communications. Rather, that it is a by-product of the defense’s illusions and paranoia.
However, if intelligence-gathering is truly not an issue of concern, then why not appease the defense? Why not eliminate the pre-gated feed system? Why not completely remove the microphones in Echo II? As Judge Learned Hand might say, the solution is nearly costless.
Apparently, it is not that simple.
What is a High Value Detainee (HVD)?
Lieutenant Colonel Ramon Torres was the last witness called to the stand. Despite questions I and others might have about his testimony as a result of his having largely discredited himself on numerous occasions, he introduced an interesting topic— one which I would like to indulge for an important moment or two. Lt. Col. Torres stated that during his time at Guantanamo Bay he was, for all intents and purposes, the mailman for the “high value detainees” (HVDs). It was clear from present context that the HVDs he was referring to were Khalid Sheikh Mohammed and his four co-defendants. However, the classification for HVDs is not so neatly quartered. For instance, the present accused were transferred to Guantanamo Bay in September 2006 along with nine other detainees also labeled HVDs, though these nine are of far lower or even nonexistent intelligence value.
If these detainees have little or no intelligence value, then why is it that they have become muddled in the same category as the alleged masterminds of the 9/11 attacks? Importantly, these other nine detainees, though not sharing the intelligence value of the alleged masterminds of the 9/11 attacks, do, however share something with those on trial now: They were all exposed to CIA Dark Sites and those site’s classified personnel, interrogation tactics, location, etc. Seemingly then, criteria for being an HVD can simply be being a DSS (Dark Site Survivor).
Sub-classifying detainees according to more narrowly tailored intelligence qualifications could be good starting point for improving the system’s accuracy, and even lend some level of explanation for the military commission process and what appears to be rampant eavesdropping. Again, a more accurate classification of the nine non-mastermind, little or no intelligence value, detainees might be— instead of HVDs, Dark Site Survivors (DSS). Or, in the very least, we can hyphenate the status to show the real issue of concern: HVD-DSS.
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.