Bloomberg News

Sept. 11 Case Judge Orders Changes in Courtroom Audio

February 11, 2013

A military judge suspended proceedings for a day in the case of the accused plotters of the Sept. 11 terrorist attacks because of concern that the government may be eavesdropping on private conversations between the defendants and their lawyers.

The judge, Army Colonel James Pohl, ordered today that the microphone system in the courtroom at Guantanamo Bay, Cuba, be changed so that each microphone is kept off until someone pushes a button to speak. Under the existing system, the microphones are kept on unless someone pushes a “mute” button.

Defense lawyers say the sensitive audio feed from the courtroom lets a secret government authority listen to private talks they have with their clients while in the courtroom. Prosecutors, who are seeking the death penalty in the case, have denied any government eavesdropping.

Pohl agreed to suspend proceedings for a day so that lawyers could interview witnesses to investigate the matter.

The mystery of who may be listening in on private talks between Khalid Sheikh Mohammed and four other accused terrorist plotters and their attorneys, and whether anything should be done to prevent it, has stymied proceedings in the biggest U.S. terrorism case.

Defense lawyers had filed an emergency motion seeking to bar the military from monitoring their confidential talks with the accused after discovering that a government official known as an “original classification authority” had cut off audio and video feeds of proceedings to the public two weeks ago.

‘Guess What, Judge?’

Pohl, who indicated he was as surprised as defense attorneys by the cutoff that he hadn’t authorized, issued an order making clear that he has sole authority to censor the feeds. Defense attorneys said the incident convinced them that their private conversations also could be monitored by the government because of sensitive microphones in the courtroom and listening devices in holding cells.

“This is a genuine concern that we have,” David Nevin, Mohammed’s chief lawyer, said in court today before the hearing was suspended. “We have to get to the bottom of it before we can go on with these proceedings.”

Cheryl Bormann, a lawyer for Walid bin Attash, a Yemeni charged with helping to train the Sept. 11 hijackers, said she had been told by a prison guard that a small device she saw in a room used to meet with her client was a smoke detector.

“Guess what, judge?” Bormann said today in court. “It’s a listening device.”

Guard Commander

Tomorrow, Pohl is scheduled to hear testimony from the commander of the guard force at the Guantanamo prison camp and the director of courtroom technology.

“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 filing made public over the weekend.

Also denying any eavesdropping, Army Brigadier General Mark Martins, the chief prosecutor, told reporters last night that “any prosecutor is actively supposed to avoid” listening to attorney-client conversations.

He declined repeatedly to disclose who the original classification authority is, which government agency the official represents or even where the person is located.

‘Echo 2’

While prosecutors said in their filing that the military had the ability to listen in on meetings defense lawyers hold with their clients in a Guantanamo Bay facility known as “Echo 2,” they said “security personnel have never activated the audio feature during defense visits.”

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 case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).

To contact the reporter on this story: David Lerman in Guantanamo Bay, Cuba at dlerman1@bloomberg.net

To contact the editor responsible for this story: John Walcott at jwalcott9@bloomberg.net


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