Prosecutors seeking the death penalty for Khalid Sheikh Mohammed and four other men accused of orchestrating the Sept. 11, 2001, terrorist attacks told a military judge that they haven’t eavesdropped on confidential attorney-client conversations.
The government’s court filing this weekend comes as another round of hearings gets under way at the U.S. naval base in Guantanamo Bay, Cuba, where the five men are being tried. The first issue before the judge on Feb. 11 is an emergency motion by the defense seeking to bar the military from listening in to lawyer conversations with the accused.
In court papers made public by the military yesterday, prosecutors denied eavesdropping on the defendants. “No entity of the United States government is listening, monitoring or recording communications between the five accused and their counsel at any location,” prosecutors wrote in a legal brief.
Defense lawyers’ suspicions were triggered after a courtroom audio feed was briefly suspended without the judge’s permission during legal arguments at the last set of hearings, which ended Jan. 31.
Until then, defense lawyers thought that only the judge or his court security officer could interrupt the sound transmission to observers outside the courtroom at the base.
Prosecutors later told defense lawyers that a government official known as an original classification authority, or OCA, also controlled courtroom audio. That spurred a defense request to suspend proceedings at the military tribunal until the defense learns whether “someone” is listening to lawyer conversations among themselves and with their clients.
There is a 40-second delay of statements broadcast from the courtroom to ensure that classified information isn’t disclosed. When a cutoff of the audio is triggered, listeners outside the courtroom hear a static-like sound known as white-noise.
In their court papers, which were made public by the military, prosecutors told the judge, Army Colonel James Pohl, that “there is absolutely no prohibition, nor is it in any way inconsistent with the protections for classified information for an OCA to review the closed circuit audio-video transmission to conduct a classification review.”
They do not identify who the OCA is or where the person is situated.
“A brief interruption of the audio and video transmission in this case prompted by the OCA, or any other party for that matter, does not amount to a per se violation of the attorney- client privilege,” prosecutors said. “What third parties observe from a remote location far removed from the courtroom is irrelevant and has no bearing on these proceedings.”
Following the judge’s order of Jan. 29, the OCA now only monitors the proceedings and provides “guidance” to the court security officer as to whether “classified information has been disclosed,” they said.
Prosecutors say in their filing that the military is capable of listening in to meetings defense lawyers have with their clients in a Guantanamo Bay facility known as “Echo 2” because rooms there are used for purposes other than attorney- client meetings.
“Security personnel have never activated the audio feature during defense visits,” military lawyers say in their brief.
Mohammed and the four others are accused of plotting the attacks that used hijacked passenger airplanes to kill almost 3,000 people at the World Trade Center in Manhattan, the Pentagon in Virginia, and in Pennsylvania.
They are charged with conspiring to finance, train and direct the 19 hijackers who seized the four planes, terrorism, hijacking aircraft, conspiracy, murder in violation of the laws of war and attacking civilians.
A trial is at least a year away. The men face the death penalty if convicted.
The case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).
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