Meeting rooms used by accused plotters of the Sept. 11, 2001, terrorist attacks to consult with their attorneys had microphones in the ceiling that could be used by the U.S. government to monitor conversations, the top legal adviser for the Guantanamo Bay, Cuba, prison camp said.
The disclosure by Navy Captain Thomas Welsh in court yesterday came as part of an effort by defense lawyers to show the potential for government eavesdropping on confidential attorney-client conversations. Welsh said the microphones, disguised to look like smoke detectors, were never used to monitor such meetings.
“Under my watch, definitely, we just don’t listen in,” said Welsh, who has held his position as staff judge advocate since May 2011.
The mystery of who may be listening in on private talks between Khalid Sheikh Mohammed and four other defendants and their attorneys, and whether anything should be done to prevent it, has stymied proceedings in the biggest U.S. terrorism case. Prosecutors are seeking the death penalty in the case, which may not go to trial for more than a year.
Welsh said he accidentally discovered the potential for audio monitoring in the meeting rooms in January 2012, after walking into a control room and finding a law enforcement official wearing a headset to listen to a public meeting between prosecutors and defense counsel.
The military judge in the Sept. 11 case, Army Colonel James Pohl, said audio monitoring in the rooms “is no longer possible.” Welsh said the power source has been disconnected.
Defense lawyers used a day of testimony from current and former courthouse and prison camp officials to suggest that private attorney-client consultations may have been compromised.
David Nevin, Mohammed’s chief attorney, questioned why prison rules for attorney-client meetings require attorneys to disclose what languages will be spoken if no audio monitoring is taking place.
“I don’t recall,” Welsh said when asked about that rule.
Defense lawyers had filed an emergency motion seeking to bar the military from monitoring their confidential talks with the accused after discovering that a secret government official, known as an “original classification authority,” had cut off audio and video feeds of proceedings from the military courtroom to the public two weeks ago.
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. Prosecutors have denied any government eavesdropping.
Maurice Elkins, director of courtroom technology for the Office of Military Commissions at Guantanamo, testified yesterday that the courtroom microphones can be used to pick up private conversations conducted at low decibel levels.
That sensitive feed is transmitted to the court reporter, translators and the original classification authority, part of a government agency that hasn’t been publicly identified. The public audio feed, transmitted on a 40-second delay, captures only speech that reaches a certain volume.
Under Pohl’s order, the microphone system in the courtroom was altered Feb. 11 so that each microphone is kept off until someone pushes a button to speak. The microphones previously were kept on unless someone pushed a “mute” button.
Defense lawyers also raised concern about an inspection of correspondence with their clients.
Army Lieutenant Colonel Ramon Torres, who worked at the prison camp for a year until August, testified by satellite from Orlando, Florida, that he was troubled by a change in security practice that required him to open the defendants’ mail and to stamp the back of each page after checking for physical contraband.
“I was concerned about the perception of unethical conduct,” Torres said.
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.
Eve Bucca, whose husband Ronald, a former New York City fire marshal, died on the 79th floor of the World Trade Center’s second tower, said after yesterday’s hearing that she was grateful for the chance to see the accused in person.
“I feel very fortunate that I’m down here,” Bucca said. While calling the hours of testimony on courtroom mechanics “somewhat frustrating,” she said she understood the need for it. “I don’t want anyone let off on a technicality,” she said.
While the Obama administration had initially pushed to try the case in New York City, Bucca said she supports holding the trial at the military base at Guantanamo.
“In this environment, I think this is the safest way to do it,” she said.
Asked if she wanted to return to Guantanamo to see more of the proceedings, Bucca said, “In a perfect world, I’d like to be here every day.”
The case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).
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