Al Nashiri Before a Military Commission at Gitmo

This guest post was written by Charles R. Church, and is drawn from his copyrighted e-book titled My Week at Guantanamo’s War Court, which is available on amazon.com.

 

My excitement ran high when Mark Denbeaux phoned to tell me I would be heading to the Guantanamo Naval Base for a week, for I had been studying, writing and talking about both its detention facility and its military commissions for years. Now I would be attending, as a journalist and observer, pretrial proceedings in the military tribunal capital prosecution of abd al Rahim Hussayn Muhammad Al Nashiri, the Saudi claimed to have presided over bin Laden’s “boats operation,” for which he had planned three attacks on foreign ships, including the devastatingly lethal one in 2000 on the USS Cole, the destroyer fueling in Aden Harbor in Yemen. Continue reading

Al Darbi Pleads Guilty

Alexandra Kutner is currently at Guantanamo Bay, Cuba on behalf of the Center for Policy and Research 

Ahmed Mohammed Ahmed Haza al Darbi spoke in both English and Arabic as he answered judge Air Force Col. Mark L. Allred’s questioning on Thursday. Clutching his prayer beads, al Darbi, a Saudi Arabian national, pled guilty to having joined with other members of al Qaeda in planning and preparing attacks against civilian oil tankers in Southwest Asian Waters. While al Darbi entered Court Room 1 knowing he was going to plead guilty to the charges, he listened attentively to each question and the detailing of every element of his charges. Despite being captured during the actual attack of the MV Limburg, al Darbi acknowledged today that he was complicit in the plot that lead to the explosion. Al Darbi will likely spend between 9 and 15 additional years in prison, possibly in his home country of Saudi Arabia.

There has been speculation that Al Darbi will testify against Nashiri, accused of plotting the 2000 attack on the USS Cole, in his upcoming trial, but this has been neither confirmed nor denied at this time.  Al Darbi is the sixth detainee to plead guilty at the military commissions and the first Saudi convicted of terror charges.

Alexandra Kutner, Research Fellow
Center for Policy and Research

Al Nashiri Keeps Kammen, Speaks of Frustrations

Alexandra Kutner is currently at Guantanamo Bay, Cuba to observe proceedings in the al Nashiri case on behalf of the Center for Policy and Research.

Alleged architect of the USS Cole bombing Abd al Rahim al Nashiri’s motion hearing went off without a hitch yesterday morning. Al Nashiri met with his learned counsel Rick Kammen after the court recessed on Monday, and the pair appear to have worked out whatever problems led to al Nashiri’s attempt to fire Kammen. Al Nashiri spoke unshackled to the court, apologizing for the delay. Continue reading

Al Nashiri Loses Faith in Counsel

Alexandra Kutner is currently at Guantanamo Bay, Cuba to observe proceedings in the al Nashiri case on behalf of the Center for Policy and Research.

Clean shaven Saudi detainee Abd al Rahim al Nashiri, accused of being the architect of the 2000 USS Cole bombing in Yemen, merely swiveled in his chair during his seven-minute stay in court. Al Nahsiri’s learned counsel, Rick Kammen, spoke on his behalf, explaining to the court that Nashiri had lost confidence in him and wanted him removed from the case. In hopes of preserving their relationship, Kammen requested two days to attempt to reconcile the relationship. Judge Pohl agreed to grant Kammen time to speak with al Nashiri and recessed until Wednesday. If the two cannot repair their relationship, al Nashiri is ultimately allowed to fire Kammen under current military commission rules. Continue reading

Dispatch from Guantanamo Bay: US v. Mohammed

“It’s a Mixture of Kafka, Machiavelli, Catch 22, and George Orwell’s 1984.  It just depends on the day” – Major Jason Wright Defense Counsel for K.S.M.

            Last week, I had the opportunity to travel to Guantanamo from October 22nd through 25th to observe the Military Commission proceedings for United States v. Khalid Sheikh Mohammed et. al. Perhaps the most appropriate word to describe my observations is frustration.  Regularly during the week, the observable liberties afforded to each of the accused, including prayer time in the courtroom, freedom of attire, and remaining unshackled were only contradicted by the accusations of intentional sleep deprivation, confiscated attorney-client privileged material, and force-feeding. Furthermore, the interpretation of the Military Commissions’ rules and their applications were consistently debated, particularly with regards to how they should be implemented when other laws, such as international laws, hold inconsistent stances. Continue reading

The 9/11 Five’s Defense Counsel Granted Limited Visitation Privileges to “Camp 7″

Judge James Pohl has granted the defense counsel in the 9/11 military commission limited access to Camp 7, the top secret prison home of the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and his four co-defendants.

The defense counsel teams initially requested a 48-hour access stint, which included the ability to sleepover with their clients once per month. The Prosecution proposed a cursory two-hour tour of Camp 7.

On Tuesday, Judge Pohl ruled that, for one time only, up to three members of each defense team could visit their respective clients in Camp 7 for no longer than 12 continuous hours. The visitation privilege was limited to the hours between 6 a.m. and 9 p.m.

No doubt about it: this is a big deal. Camp 7 is one of the most top-secret facilities on Guantanamo Bay Naval Base, Cuba. Even its very location is classified. Not to mention, this ruling comes one week after Camp 7 military police ransacked some of the defendants’ legal bins and seized already screened and approved personal items. The defense was in uproar last week, interpreting this as another attempt by the government to intrude on attorney-client privileged communications.

While the defense teams will be permitted to take notes, make sketches, and pictures during their visit, it is no surprise that those materials will be subject to inspection.

Commander Ruiz Angers Admiral MacDonald

Recapping the fourth and last day of last week’s 9/11 military commission hearings at Guantanamo Bay, presiding Judge James Pohl promised to address “the bin issue” after lunch.

But first, the court heard testimony from Admiral Bruce MacDonald, the Director of the Office of the Convening Authority and the presiding Convening Authority for the Office of Military Commissions. Commander Walter Ruiz, defense Counsel for Khalid Sheikh Mohammed’s co-defendant Mr. al-Hawsawi, argued that MacDonald inappropriately approved the 9/11 five’s eligibility for death sentences before each had been provided with an appropriate amount of informed legal advice.

A veritable screaming match erupted when Ruiz rhetorically asked, “Admiral, can a capital defense lawyer—who doesn’t have a translator that speaks the defendant’s language, who doesn’t have a mitigation expert, and who cannot communicate in writing with his client—present adequate mitigation evidence?”

Ruiz explained that he was without the help of a mitigation specialist—a defense team’s psychologist of sorts, who possesses clinical information-gathering skills enabling him or her to extract from the defendant sensitive, sometimes embarrassing and often humiliating evidence that will shape a defense attorney’s themes and theories of the case. Ruiz argued that while it is true that MacDonald had approved a particular mitigation specialist, he was of no beneficial use because MacDonald refused to approve his security clearance. So, although Ruiz’s mitigation specialist could speak to Mr. al-Hawsawi, he could not speak with him about any of the pressing classified issues—like his experience with “enhanced interrogation techniques.” Also, Ruiz was without an approved personal translator, and was instead relegated to use a cadre of government-provided translators that had independent contracts with JTF-GTMO (Ruiz disputes having rejected eight translators).

Approaching lunch break, Judge Pohl asked MacDonald if he would agree to be interviewed by the defense. No, he answered. But then objected to interviews without a government official present.

Ruiz turned to sit down from the podium, but quickly returned as if he had forgotten something, and added with some sarcasm, “Judge, I will simply indicate as an officer of the United States Navy, I am a member of the government.”

“Commander, I’m more than aware of that,” Judge Pohl said, while nodding and smirking.

Admiral MacDonald will be recalled later in the hearings.

“The Bin Issue”

Ms. Cheryl Bormann, Learned Counsel for co-defendant Mr. bin ‘Attash, announced at the end of Wednesday’s hearing that when her client, Mr. bin ‘Attash, lead defendant Mr. Khalid Sheikh Mohammed, and another co-defendant returned to their cells after Tuesday’s session, their legal bins containing attorney-client privileged mail had been ransacked and some items were seized. Bormann summoned Navy Lieutenant Commander George Massucco, Assistant Staff Judge Advocate for JTF-GTMO, to take the stand.

Massucco, whose name was laughably butchered a dozen times before he was forced to spell it out for counsel, confirmed that there had been a routine inspection and items were seized, but the SJA Office has since determined that the items would be returned to the three co-defendants. He informed the court that the seized documents, mostly photos (one of the Grand Mosque in Mecca), were seized because they were improperly stamped and without initials.

Bormann alleged that the inspection protocol and stamping system was flawed in its practice. The guard staff conducting inspections, she explained, were re-screening documents that had already been approved by J2—documents that had been in the defendants’ cells, in some cases, for over a year and half. Having passed thousands of inspections since 2011, it is strange, she said, that they are being seized now. Her concern heightened when she learned that  a turnover in the guard force—what Massucco called an Army-Navy “rip”—was taking place.

“But as I see it, it’s not going to really matter who does the inspection if the inspection keeps happening. The seizure of the same mail, the same materials over and over and over, whether that seizure is done by a PRT person or whether that’s done by the guard force— it boarders on harassment,” Bormann pleaded.

“I got it,” Judge Pohl said.

Chief Prosecutor, Brigadier General Mark Martins tried to cool the tension radiating from the defense’s side of the room. He explained that the inspection was routine, and the defense counsel teams unanimously agreed that such a procedure is reasonable and necessary in order to protect against a legitimate national security risk. The seizure, he explained, was a competent response to the same protocol that has been used by the “old hands” and is currently being taught to the “new hands.”

Bormann demanded the need for some common sense legislation. Yet Judge Pohl responded, “And I think, as you recognize, you said you can’t legislate common sense or order common sense; all you can do is the best you can with what you’ve got…. And you’ve got to balance [the legitimate need for security] obviously and minimize the intrusion to privileged materials.”

The defense proffered an off-the-cuff proposal for “common sense legislation”: that all documents be stamped properly in accordance with JTF-GTMO SOP and all inspections be performed under the same accord; and that the defendants’ legal bins only be inspected for illegal contraband (i.e. weapons), not for the content of the items contained therein; and if items are seized, the Assistant SJA should refer to defense counsel for reasonable clarification.

Moving forward, the defense has been given 7 days from last Thursday to submit a formal proposal, and the prosecution will be given 7 days to respond, although they have already made it clear that a motion to grant AE 018 would be their position.

In the meantime, the prosecution agreed to have all sixteen “smoke detector” microphones removed from Echo II.

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.

Guantanamo Military Tribunals: A Soup Of Sound

2L student Josh Wirtschafter is in GTMO this week observing the military commission hearings.  His observations from the Tuesday, February 12th hearings are printed below.

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.

KSM, Co-Defendants’ Legal Mail Ransacked And Seized

2L student Josh Wirtschafter is in GTMO this week observing the military commission hearings.  His observations from Wednesday’s hearings are printed below.

Wednesday’s pre-hearings in,United States v. Mohammed, et al., ended in soap opera-esqe drama. The last motion of the day was postponed until Thursday morning when it was announced that the alleged mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and two of his co-defendants, had returned to their cells after yesterday’s session to find their attorney-client mail ransacked— and much of it seized.

The news of the ransacking and seizure of attorney-client mail was apropos, given the morning testimony of Lieutenant Alexander Homme, who detailed the attorney-client mail screening process. Pursuant to a Staff Judge Advocate (SJA) Order, it was Homme’s job to screen mail both to and from detainees in their cells as well as in Echo II, the attorney-client meeting room. In short, Homme explained that non-legal mail would be separated from the legal mail, which was vaguely defined as any hand-written or typed documents that were prepared by the attorney, and that legal mail was allowed to pass, non-legal mail was subjected to seizure and further review. Eventually, however, it became clear that legal mail had a somewhat narrow definition, as even exhibits attached to an amicus brief, for example, are not guaranteed to be construed as “legal” for these purposes and thereby pass to a detainee.

Rejected non-legal mail would be seized and delivered to J2, the intelligence agency of Joint Task Force (JTF) at Guantanamo Bay, for inspection. Ms. Bormann, Counsel for Mr. bin ‘Attash, evidenced the difficulty of this process as she recounted, and Homme confirmed, four occasions where he rejected her attempt to deliver legally relevant documents to her client (an Arabic translation of the screening order, the book “Black Banners” that contained a chapter specific to her client’s charges in this case, a NAVY JAG Instruction on JAG ethics, and an amicusbrief from the al-Nashiri case that dealt with the same kind of seizure of attorney-client privileged material happening here).

Various defense attorneys noted the problematic nature of the screening process. First, the Order’s vague definition of legal mail makes it tremendously difficult to pass legal documents from attorney to client, and vice versa: what may be considered highly relevant to the defense as  part of effective legal, can be construed by the government as non-legal mail and subject to seizure. And second, even if the defense wants to exchange non-legal mail, all of it must first be screened by J2, a process by which it could take months to be cleared and delivered, and still, there is no guarantee that all of the documents will ultimately be delivered.

The reported ransacking and seizure of the accused’s legal mail seemed almost icing on the cake for defense counsel.

J2 Just Might Visit a Local Radio Shack

Next on the stand was Colonel John Vincent Bogdan, Joint Task Guard (JTG) Commander, who is responsible for controlling the attorney-client meeting room at Echo II. Lead by the compelling cross-examination of Mr. Nevin, Learned Counsel for Khalid Sheikh Mohammed, Bogdan revealed that although he began his commission as JTG Commander in June 2012, it was not until January 31, 2013—two weeks ago—that Bogdan learned of Echo II’s audio capabilities from Captain Welsh. He represented to the court that he had no knowledge of Echo II’s audio capabilities until that point, and assured the court that “they do not audio monitor in Echo II.” After learning of these audio monitoring capabilities, Bogdan issued a verbal order, not a written order, “that there was to be no audio monitoring of attorney-client meetings.”

In a quick witted response, Mr. Nevin asked: “But since you understood there was no audio — excuse me — audio monitoring capability, there was really no reason to order that there be no audio monitoring, right?” Why issue an order to not do something that is already not done? Bogdan said it was necessary to cement the policy.

Thereafter, Mr. Nevin sought answers from Bogdan as to how he took measures to assure that his verbal order would be obeyed. Bogdan confirmed that his guards dismantled the audio monitoring system. They did not remove the system altogether, however, and instead they “disconnect[ed] all the power supplies and secure[d] all the power supply so the system couldn’t be inadvertently turned on.” In other words, he had the electrical cord removed from the wall.

Bogdan also confirmed that J2 owned all of the audio and video technology in Echo II—the cameras, the microphones, and the wires connecting those pieces to the video and audio systems. This past weekend the defense were permitted to enter and observe the audio monitoring system in the control hut for Echo II. The audio system is called Louroe AP-4. It is a non-recording system, but it has an audio output jack in the back of it where one could simply plug-in a digital recording device—try Radio Shack.

The defense “tag-team” made the point, and Bogdan admitted, that as easy as it was to conceal from Bogdan the fact that Echo II has audio monitoring capabilities for over a year into his commission, J2 could also have just as easily purchased tiny microphones from Radio Shack and put them in Echo II without him knowing.

Balancing Competing Interests: National Security v. Protecting Attorney-Client Privileged Communications

Easy to lose in the drama and vagaries of another day in GTMO, the day’s pre-hearings were an emergency interlocutory motion to investigate into intrusions on attorney-client and attorney-attorney privileged communications.

JTF-GTMO wants security in Echo II for national and camp security reasons. The defense teams want to be relieved of the reasonable fear that they are being listened to in the courtroom and in Echo II. All seemingly reasonable concerns.

Ms. Bormann suggested a remedy—that the audio system be completely removed (maybe destroyed and trashed) and the guards instructed to monitor the attorney-client meetings in Echo II from chairs outside the room, leaving the door open but having them sit far enough away so that they cannot hear the conversations inside. The court seemed skeptical, and I suspect both prosecution and defense will continue to be so as well.

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.

Possible Intrusions into Attorney-Client Privileged Communications at Guantanamo: A Soup Of Sound

2L student Josh Wirtschafter is in GTMO this week observing the military commission hearings.  His observations from Monday’s hearings are printed below.

Monday, February 12, 2013

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.

Dispatch from GMTO: Al-Nashiri Military Commission Hearing

Al-Nashiri Military Commission: ‘The Man Behind the Curtain’ Turns Defense Counsel Into Cornered Huddled Masses; Prosecution says: ‘Al-Nashiri’s Incompetent to Stand Trial; Now Let’s Continue With the Trial’ 

This post is the product of research fellow Sean Kennedy’s observations at last week’s al-Nashiri hearings at Guantanamo Bay.  

In the first of what was supposed to be four days of hearings in Guantanamo in the case against Abd al-Rahim al-Nashiri—the alleged mastermind behind the U.S.S. Cole bombing—the commissions came to a screeching halt.

Judge James Pohl granted the prosecution’s motion to examine the mental capacity of al-Nashiri and all other scheduled motions for the proceedings were held in abeyance until a determination on al-Nashiri’s capacity was finalized.

The courtroom atmosphere was contentious throughout the duration of the proceedings with what might be termed bickering between both sides and Judge Pohl.

In total, two motions were heard before Judge Pohl affirmed the prosecution’s motion on al-Nashiri’s mental capacity and effectively quashed the hearing until a yet be determined date.

Having said that, the hearing was not without drama.

 

AE 149 – Motion to Investigate the Ability of Third Party Monitoring of Attorney/Client information.

 

The morning began with a hearing on a last minute motion filed by the defense on Friday, February 1, 2013, in response to last week’s unsettling revelation that outside governmental agencies could listen to the proceedings remotely, and “close down” the the court without the Judge’s knowledge or permission.

The prosecution elected not to draft a written response to the motion, instead opting to respond on the record.  Defense counsel, Commander Steven Reyes, argued that because of this undisclosed monitoring by outside agencies, the defense’s ability to have privileged conversations with their client was impaired and thereby they would not be able to provide effective representation. In addition, the defense argued that further discovery would be necessary to determine whether or not this same kind of remote monitoring system was in place in the holding areas outside of the courtroom and in the attorney conference room on the far side of the island where meetings with the detainees take place.

In response, Mr. Anthony Mattivi, the U.S. attorney representing the prosecution, claimed that the defense was attempting to switch the burden and place it on the government while offering no evidence that any monitoring could take place outside of the courtroom. The prosecution attacked the lack of factual support in the defense’s brief for its claims and stated that the defense was conflating two separate issues. Finally, Mr. Mattivi criticized the defendant’s proposed remedy of shutting down the proceedings to conduct an investigation into the monitoring by stating, “I don’t quite understand how that would work from a legal perspective.”

Judge Pohl was quick to push Commander Reyes about the lack of evidence to support a claim that conversations could be monitored in the holding cells outside the courtroom or in the attorney meeting rooms by the prison. The defense claimed that the events of last week were proof positive of this capability and should be more than enough to overcome its burden of proof and persuasion. The protracted dialogue between Lt. Commander Reyes and Judge Pohl became increasingly heated as the commission wore on, with Judge Pohl contentiously asking, “Does it surprise you that the government can monitor conversations across the world?”

The Judge denied the motion, ruling that the defense did not proffer enough evidence to carry the burden but made note that if evidence did arise it would require serious and significant remedies. However, after the motion was denied, Commander Reyes requested a 3-hour recess to contact ethics specialists to ensure that the defense would not be violating any ethical obligations by continuing the representation in light of the specter of remote monitoring of attorney client conversations.

In addition the defense wanted to speak with the individuals that oversee the courtroom’s technology to determine what, if anything, could be done. Judge Pohl initially took issue with the request and expressed concern that defense was attempting to sua sponte overturn his ruling on the motion. After a prolonged exchange, the Judge granted a one-time exception, allowing this recess to give defense counsel the opportunity to confirm that it was not violating any ethical obligations under the circumstances.

During the break, the defense counsel told the court it learned that third parties could monitor conversations on any microphone inside the courtroom. However, there was no evidence that any audio recordings could be taken from the holding cells outside the courtroom. Interestingly, there was no clear answer with regard to the Attorney meeting room, a revelation that presented great pause for the defense.  Judge Pohl emphasized that he would not order an attorney to act in a manner that violates an ethical obligation and said that he understood the defense’s concerns. He reiterated that the current situation did not pose such an ethical issue. Defense counsel had consulted with their ethics counselor and indicated they were ready to proceed. However, as the day would prove, the government would shortly take the position that ultimately forced this entire proceeding into an indeterminate hiatus.

Additionally, an agreement was set up with the prosecution to speak to various technical operators at the detention center to address the remaining confidentiality concerns. However, due to what was said to be the monitoring capabilities from the microphones throughout the court room, defense counsel huddled in a corner of the court room on several occasions in order to confer privately, outside the range of the microphones and what defense counsel referred to as “The Man Behind the Curtain (perhaps having read my colleague, Adam Kirchner’s, report in The Public Record on the KSM hearing). While the motions continued, the “Man Behind the Curtain” is, as of yet, still unidentified, and seemingly poses significant obstacles for the defense going forward.

 

AE 99D—Government Motion for Commissions to Discuss with the Accused Matter Considered by the Commission During the 18-19 July 2012 and 23 October 2012 Sessions.

The next motion before the Commission involved the prosecution’s request to clarify a waiver of appearance by al-Nashiri for the above-mentioned dates. The prosecution argued that the law has now changed– allowing a detainee to waive his right to appear in the beginning of a particular session while still maintaining the ability to change his mind and appear in the session later in the day. Previously, when a detainee waived the right to appear, the waiver was in force for the full day. The prosecution argued that because of this change the record needed to be clarified and, if necessary, al-Nashiri would need to briefly speak in open court.

The defense countered by asking the court for the ability to investigate underlying facts in any statement  al-Nashiri may make on the record if he is required to speak. The defense argued that the investigation would occur for the sole purpose of providing context to these future statements so that they could not be used as evidence against al-Nashiri’s mental competence. Commander Reyes pointed out that the uninvestigated statements made by al-Nashiri were the basis for the prosecution’s current motion to exam his mental capacity to stand trial. Judge Pohl reserved his decision on this issue pending the result of the upcoming motion.

 

AE—140 Government Motion for Inquiry into the Mental Capacity of the Accused Under R.M.C. 706

 

The third motion of the day had the potential to stop all litigation in the case dead in its tracks. In an unusual twist, the prosecution was petitioning for an investigation into the mental state of al-Nashiri in order to determine whether or not he is able to understand and assist in his own defense. Judge Pohl asked the prosecution if they understood that a grant of this motion would put the case on hiatus until the examination was concluded. Mr. Mattivi acknowledged that he understood; however, his answer would change immediately after the Judge made his ruling.

If granted, the 706 motion would allow the Judge to have a board of medical professionals appointed in order conduct the examination of al-Nashiri to determine if he is competent to understand the trial and assist in his own defense. CDR Andrea Lockhart argued that this examination was necessary because of the defense’s assertion that al-Nashiri suffers from PTSD, as well as statements made by al-Nashiri during a previous session where he waived his right to appear. She further stated that the board that was appointed would be independent from the prosecution or the defense.

Defense counsel Richard Kammen—sporting a symbolic Kangaroo pin on his lapel—countered by acknowledging that al-Nashiri has PTSD related to torture committed against him in a CIA black site, but that his competency has never been in question. The defense expressed concern that the information recorded during the examination would be discoverable by the prosecution in the event that a death penalty hearing becomes necessary. Judge Pohl explained that the defense “holds the keys to the car” regarding the report and that it will not be discoverable by the prosecution unless the defense puts it at issue in the trial. In addition, Mr. Kammen was doubtful that the board would be independent and feared the appointment of “hacks.” Finally, the defense requested the Judge to hear from Dr. Iacopino, who is an expert in the area of torture related PTSD victims, for guidance regarding who should be selected for the medical board if the motion was granted.

Ultimately, Judge Pohl granted the government’s request for the 706 inquiry and with that, further progress in the case was stopped. However, after the Judge’s ruling, Mr. Mattivi posited that the court should continue to hear the pre-trial motions because there was an “assumption of competency” relating to a 706 hearing, despite his previous acknowledgment on the record that this decision would effectively pause the trial. Commander Reyes countered by stating that the presumption is only applied to the hearing that occurs after the 706 motion and that it would not make sense to continue if the prosecution believes Nashiri to be incompetent— as they claim. The Judge agreed with Reyes and set up a tentative schedule for the board to examine Nashiri in approximately 6 weeks.

Mr. Mattivi’s final attempt to continue with the trial was telling. Arguably, the prosecution was attempting to pre-empt any mental capacity challenge made by the defense at a latter date by forcing al-Nashiri to undergo a competency test before the trial starts. It was unusual that the prosecution pushed for a motion that could potentially cause its entire case dismissed if al-Nashiri is found incompetent. However, Mr. Mattivi’s attempt to have the case continue after this motion was granted begs the question of how much the government actually believes it own claim regarding incompetence.

 

AE 135 – Defense’s Motion to Allow Dr. Crosby to Examine Nashiri without Shackles and not in the Presence of Guards

 

The final motion for the day involved a pre-arranged medical examination scheduled by the defense. Dr. Sandra Crosby was scheduled to examine al-Nashiri for physical signs of abuse relating to the torture committed by the CIA. The Judge asked Commander Reyes if the session would be observed by video, if there would be guards present outside the examination room, and if Dr. Crosby is willing to sign a waiver. Commander Reyes answered all of the questions in the affirmative. The prosecution, represented by Major Chris Ruge, argued that the shackles and guard presence was a reasonable safety measure that was requested by the JTF facility commander. Judge Pohl dismissed the prosecution’s argument and stated that this was a medical professional approved by the Convening Authority and that the defense request falls within the gambit of reasonable safety measures.

With that the session—and the case—was called to a close. The only item left on the agenda was an interview to take place the following day with the defense’s medical expert Dr. Iacopino. What was supposed to be four days of substantive motion hearings was reduced to a single day with a 3-hour recess. At the conclusion, many of the same issues are outstanding. The “Man Behind the Curtain” remains unknown and can still seemingly monitor the proceedings—and potential attorney client interviews—from a remote location. Further, the prosecution successfully stopped its own case from proceeding forward to trial. While this may seem like an unusual day in court, as Mr. Kammen articulated to the Judge, “Your Honor, it’s GTMO.”

 

Sean Kennedy is a student at Seton Hall University School of Law. He is also a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law.