SETON HALL LAW SCHOOL ISSUES REPORT DETAILING GOVERNMENT SPYING CAPACITY ON GTMO LAWYERS AND CLIENTS

Attorney-Client Meeting Rooms Implanted with Cameras that can Read ‘Tiny Writing’ and Microphones Disguised as Smoke Detectors that can Hear ‘Whispers’
Seton Hall University School of Law’s Center for Policy & Research has issued a report: “Spying on Attorneys at GTMO: Guantanamo Bay Military Commissions and the Destruction of the Attorney-Client Relationship.” The report details the surveillance and recording technology in designated attorney-client meeting rooms at Guantanamo Bay— capacities that are inexplicable unless being utilized to eavesdrop on confidential communications. The report also details the often contradictory if not false government statements regarding attorney-client privacy and the utilization (or even the existence) of the hyper-sensitive monitoring equipment installed in the supposedly private rooms.
The issue of government surveillance encroaching upon attorney-client privacy is expected to come to a head in the upcoming Military Commission Hearings in Guantanamo Bay.
Law Professor Mark Denbeaux, Director of the Seton Hall Law School’s Center for Policy and Research, commented, “If the government has spied on attorney client communications discussing trial strategy the legitimacy of the military commissions is again in grave jeopardy. It is now clear that the government has secretly implanted surveillance equipment in the meeting rooms that has spying capacities that are inexplicable unless being utilized to eavesdrop on confidential attorney client communications. The court must determine the extent to which such communications have been penetrated; if the government spying allows the government to know an attorney’s defense before trial, the proceeding ceases to be a trial and is reduced to a farce.”
The Seton Hall Law Report concludes that lawyers at Guantanamo Bay can no longer assure their clients that the government is not listening to their conversations or reading or recording the attorneys’ written notes. The report further notes that:
  • Listening devices in the attorney-client meeting rooms are disguised as smoke detectors.
  • The listening devices are so hypersensitive that they can detect even whispers between attorneys and their clients.
  • Cameras in the attorney-client meeting rooms are so powerful that they can read attorneys’ handwritten notes and other confidential documents.
  • The cameras can be operated secretly from a location outside of the room.
  • The attorney-client meeting rooms turn out to have been the former CIA interrogation facility.
  • Importantly, the CIA recording equipment was upgraded after the CIA left.
“With cameras and microphones so powerful they can read ‘tiny writing’ and hear ‘whispers,’ the government assurance of a right to counsel seems more like a trap than a right,” said report co-author and Seton Hall Law student Adam Kirchner.

 

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.

When Will Obama Close GTMO?

Since President Obama’s inauguration last month, his unfulfilled promise to close Guantanamo Bay Detention Center has once again risen to the forefront of the public discourse.  Throughout his campaign as a presidential candidate, and into his first term as President of the United States, Obama stated multiple times that he was going to ensure Guantanamo closed its doors.  In fact, on January 22, 2009, he began his second term in office by signing an Executive Order directing that, “the detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order.”

Why, then, in 2013, four years after this Executive Order, is Guantanamo still open?

During the Executive Order’s signing ceremony, Obama made it clear that closing Guantanamo would be accomplished in a manner that prioritized United States national security and foreign policy interests.  This may be true, but as we have seen throughout Obama’s first term as President, closing Guantanamo is far easier said than done.

A lot of the pushback against closing GTMO comes from our representatives.  Congress has used its spending oversight authority both to forbid the White House from financing trials of Guantánamo captives on U.S. soil and to block the acquisition of a state prison in Illinois to hold captives currently held in Cuba who would not be put on trial — a sort of Guantánamo North.[1]  Despite these road blocks, Sen. Dianne Feinstein, D-Calif., the Senate Intelligence Committee chairwoman, has indicated recently that “if the political will exists, we could finally close Guantanamo without imperiling our national security.”[2]

If President Obama wants to close GTMO, he needs to take some serious action soon, and establish a concrete plan that will garner support from the public, but more importantly, the politicians voting for his plan.  Today, most Republicans and some Democrats remain opposed to closing the facility.  House Armed Services Chairman Buck McKeon has said, “no one has ever argued that Guantanamo Bay is ideal, but before you talk about closing it you have to tell the country what you will replace it with.”

While politicians cite a variety of reasons for opposing closing down GTMO, it frequently comes down to cost and safety.  A quick look at operating costs reveals it is far cheaper to house the remaining GTMO detainees in the United States vs. at the facility.

As of today, the 166 detainees held at Guantanamo costs the United States an astounding $114 million each year to operate.  Transferring these detainees to a facility in the United States would be far cheaper.  According to John Maki, who heads the John Howard Association (a watchdog group that monitors Illinois prisons), it cost $26 million annually to run the Tamms Supermax in Illinois- a recently closed prison with fewer than 200 inmates which was frequently referred to as being “tougher than GTMO.”  That’s 22.8% of the cost of operating GTMO.

As to the safety argument, Senator John Thune, Republican of South Dakota, has stated that “the American people don’t want these men walking the streets of America’s neighborhoods.” Ignorant comments like this are tainting public opinion. As dangerous as some of these men may be, they will in no way be “walking the streets of America’s neighborhoods.” They would be locked up in a highly secure prison- no more dangerous than the murderers, rapists, and other criminals they would be sharing their facility with.

Thus, it is clear that the real hurdle to closing GTMO is the fear mongering of our Congress.  America is ready for GTMO to close, we just need our elected representatives to get on board with us.

Paul Juzdan, Research Fellow

Center for Policy and Research


[1] http://www.foreignaffairs.com/articles/136781/carol-rosenberg/why-obama-cant-close-guantanamo

[2] http://www.feinstein.senate.gov/public/index.cfm/press-releases?ID=617e2735-349d-447c-8fc6-78d2a3a00bc5

This Week at GTMO: al-Nashiri Hearings

This week, from February 4-7, Judge Pohl will hear motions relating to the charges against al-Nashiri.  The most current docketing order for this week’s hearings was posted on January 14th (motions to amend this order have since been filed by both parties, but the outcome is not publicly available), and states the following motions (in this order) will be addressed this week:

a. AE 045 Government Motion for a Scheduling Order

b. AE 099D Government Motion for the Commission to Discuss with the Accused Matters

Considered by the Commission During the 18~19 July 2012 and 23 October 2012 Sessions

c. AE 107 Defense Motion to Compel the Convening Authority to Fund Two Individuals to

Act as Defense-Initiated Victim/Survivor Outreach (DIVO) Liaison (plus witness production issue

c. AE 114 Defense Motion to Find that RM.C. 703(c) violates 10 V.S.C 949j.(a)( ) and Mr. al Nashiri’s Constitutional and Statutory Rights to due process

f. AE 118 Defense Motion to Cease the Use of Belly Chains on the Accused by JTF~GTMO

g. AE 120 Defense Motion to Compel Discovery of Information in the Possession of any Foreign Government and the United States related to the Arrest, Detention, and Interrogation of Mr. al Nashiri (Classified)

h. AE 131 Defense Motion to Compel Production of Representative of the OCA to Testify at the Hearing on AE I12

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

j. AE 141 Defense Motion to Compel Discovery of the Prosecution’s Prudential Search Requests

k. AE 142 Defense Motion to prevent Mr. Al4Nashiri from Being Removed from the Courtroom During a Closed Session

I. AE 143 Defense Motion to Compel a Copy of A ll Discovery Provided to Habeas Counsel

m. AE 144 Motion to Compel Discovery in the Possession of the United States Attorney for the Southern District of New York Demonstrating the Guilt of Fahd Mohammed Ahmed al~Quso and Jamal Ahmed Mohammad Ali al~Badawi Relating to the Present Charges

n. AE 145 Motion for the Commission to Consider the Defense Request for Expert Assistance III Camera al1d Ex Parte and to Compel the Convening Authority to Approve Funding the Expert as a Defense Consultant

o. AE 146 Motion for the Commission to Consider a Second Defense Request for Expert Assistance 111 Camera al1d Ex Parte and to Compel the Convening Authority to Approve Funding the Expert as a Defense Consultant

For more information on what specifically will be addressed, you can check the government’s website, http://www.mc.mil/CASES/MilitaryCommissions.aspx.  Simply enter al-Nashiri’s name, and  find the corresponding filing code (ex: AE 146) to read the parties’ detailed motions.  Feel free to leave a comment if there is a specific motion you would like to see the Center’s Fellows discuss further on the blog this week.

As you can see by the sheer volume of motions to be addressed this week, it will be an eventful few days.  Check back periodically for reports from our student observer, Sean Kennedy, who will be at GTMO observing this week’s hearings.

Kelly Ann Taddonio, Research Fellow

Center for Policy & Research

Only the Judge is in Control, Except When He Isn’t

2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo.  This article, describing his experiences as an observer, was featured in “The Public Record” today:  

The Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., resumed on Tuesday after adjourning on Monday. As expected, all of the accused waived their right to appear at their own hearings, with co-defendant Walid bin Attash’s criticism of the trial’s process still echoing from the day before. Bin Attash had described the process, given the detainees’ inability to communicate with their attorneys without the government listening in, as undermining  the establishment of trust in the  attorney-client relationship— and the legitimacy of the hearing itself. . Bin Attash, Khalid Sheikh Mohammed, and three other co-defendants, are charged with violations of the Military Commission Act of 2009 for their alleged roles in the preparation for the 9/11 terrorist attacks.

Only the Judge is in Control, Except on Monday

Immediately following the issue of the non-present defendants, Presiding Judge James Pohl addressed the pressing question of who, exactly, is in control of his courtroom. In Monday’s hearing, all but the prosecution were surprised when the audio feed to the gallery of press, NGOs and the families of 9/11 victims suddenly halted when defense counsel for KSM uttered the title of a motion pertaining to his client’s detention at a CIA sponsored black-site prison— a matter of public record. Judge Pohl reaffirmed that, even though a court security officer has instructions about what topics are to be censored, only the presiding judge has the authority to close (i.e., censor) the courtroom. Furthermore, Judge Pohl noted that the comment that resulted in the censorship “is not a valid basis for the court to have been closed.”

Judge Pohl then attempted to resolve— on the record— the defense’s concern  regarding who has access to audio feeds from the courtroom. He explained that there are two audio feeds. One feed never is censored and is transmitted only to the court reporter. The other feed – the feed in question during Monday’s prolonged censorship – is buffered with a 40-second delay, which allows the aforementioned court security officer time to sever the feed before it reaches the gallery or remote-viewing locations. “The purpose of the 40-second delay,” in Judge Pohl’s words is, “to prevent spillage of classified information.”

It Was Not A 40-Second Delay

James Harrington, Learned Counsel for co-defendant Ramzi Binalshibh, quickly brought to the commission’s attention that Monday’s actual events seem inconsistent with characterizing the censorship episode as an accidental 40-second delay glitch. “[T]here was a little bit of a delay; it wasn’t a 40-second delay,” Mr. Harrington said. “That is not what happened. The light went off in a time much shorter than 40 seconds.”

Judge Pohl stopped Mr. Harrington’s line of argument at that point, out of concern that it risked “sliding into an area we shouldn’t talk [about] in open court.” Counsel for both parties and Judge Pohl had discussed these issues in a closed session Monday afternoon. Elsewhere, Judge Pohl identified the crux of this and similar debates about the process of the hearings and access to information: “we are getting into a line between what is public and what is security.”

Judge Pohl: The United States Must Comply With Its Own Regulation

While it may seem that Judge Pohl shifted quickly from preserving access to information during the  hearings, to cautioning defense counsel about divulging information to which the public wants access, the issue resurfaced later during Tuesday’s proceedings. Judge Pohl ultimately held in favor of some procedural transparency, granting the defense’s motion to release redacted versions of classified pleadings.

James Connell, Learned Counsel for co-defendant Ammar al-Baluchi, illustrated for the commission that many documents in the case have remained entirely unavailable to the public for more than three months, some approaching half a year, despite the Government’s practice of releasing sanitized versions with sensitive information redacted.

Sterling Thomas, an Air Force Lieutenant Colonel and detailed defense counsel to al-Baluchi, further argued for the availability of documents, noting that the very slogan appearing on the Military Commission’s website would seem to promote intrinsic notions underlying the pursuit of justice:

“Your Honor, if you were to click on the Office of Military Commission website, you’re immediately greeted with the banner of fairness, transparency, and justice. And if one were a cynic, Your Honor, one might say that these words are merely window dressing. But yet, Your Honor, I think that it’s important to note that those words are there and that obviously the government understands that that’s an important principle…. But, Your Honor, the frustration continues to build as a result of delays in the – in having openness, in having transparence. And I think it was evident as recently as yesterday when our client made some statements about his frustration with the lack of what he sees as openness and transparence. And, Your Honor, I think that equally you could say the American people are also frustrated by a lack of openness and transparence. With those things in mind, Your Honor, I just want to emphasize that we think it’s critically important that whenever possible the pleadings, orders by the commission that are not classified, that these things be made available to the public so that they can inform themselves and educate themselves about this trial.

Against the points made by the defense counselors, Navy Lieutenant Kiersten Korczynski, assistant trial counsel for the United States, argued little more than that the defense is required by the Military Commission Rules to file documents, that are not certainly unclassified, directly to the judge rather than through the ordinary docketing process.

The relevant regulation (RTMC 17-1(c)(1)) is designed to preserve the judge’s control over the release of trial-related information. If the United States wants to prevent the defense’s documents from being released, the prosecution must petition the judge to do so. Likewise, if the defense wants to compel the release of their documents, it must petition the judge to do so.

Finding that the Military Commission Rules already provide the remedy that, if followed, would preclude the United States from indefinitely detaining unclassified information, Judge Pohl held essentially that the United States must comply with its own regulation.

The hearing adjourned until Wednesday, to determine if the defense will be prepared on Thursday to argue a number of outstanding motions to compel the production of witnesses. The United States has refused to produce many defense witnesses for the case, arguing that the defense has not explained how the witnesses are relevant or necessary to the issues.

Adam Kirchner is a dual-degree student at Seton Hall University School of Law and the Whitehead School of Diplomacy and International Relations. He is a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law

 

The Khalid Sheikh Mohammed Hearings Resume: But Who Is The Man Behind The Curtain? And “Who is Controlling These Proceedings?”

2L student Adam Kirchner is currently observing the KSM hearings in Guantanamo.  This article, describing his first day as an observer, was featured in “The Public Record” on January 28th.  

The KSM Guantanamo Bay Military Commission Hearing, United States v. Mohammed, et al., reconvened on Monday for the second session of pre-trial motion hearings. The first session of these hearings, held in October, 2012, devolved into what many referred to as “a circus.” The opening session of this week’s hearings produced several tense moments, including a proverbial “Man Behind the Curtain” incident (as Presiding Judge James Pohl’s control of the proceedings was superseded by some, in his words, “external body”); the hotly contested issue of the United States obstructing defense attorneys’ access to their clients arose;  the debate over whether defense attorneys are truly free to communicate with their clients waged on; and, in their own words, the detainees offered the reasons why they choose to waive their rights to be present during the hearings.

The principal defendant, Khalid Sheikh Mohammed, and his four co-defendants are each accused of eight distinct changes under the Military Commission of 2009, for their roles in the terrorist attacks of 9/11. The charges against the accused are: Conspiracy, Attacking Civilians, Attacking Civilian Objects, Intentionally Causing Serious Bodily Injury, Murder in Violation of the Law of War, Destruction of Property in Violation of the Law of War, Hijacking an Aircraft, and Terrorism.

In a briefing on Sunday, Chief Prosecutor Brigadier General Mark Martins addressed the suggestion that the recent detainee victory in Hamdan II from the D.C. Circuit would nullify the Conspiracy charges in this case as well. Prosecutor Martins stated that he would proceed in this case, assuming that he will be directed to push forward and argue the merits of the Conspiracy charge, despite the decision in Hamdan II. The strategy would make sense in the event the Hamdan II decision is appealed to the Supreme Court.

In the case at hand, the decisions made by the Judge,  Colonel James Pohl, in this phase of the commission  will ultimately affect the evidence that can be discussed, and the procedure of the commision on the merits once all pre-trial motion hearings have been concluded.

The Prosecution alleges that Khalid Sheikh Mohammed was the “architect of the 9/11 concept” in its motion designed to exclude from the trial information that it asserts could compromise the United States’ national security. See Government Motion to Protect Against Disclosure of National Security Information, AE013, page 3. Elaborating on the claim that Mohammed was the “architect of the 9/11 concept,” the Prosecution charges that he conceived of and oversaw the preparation for the 9/11 attacks. Co-defendant Walid bin Attash’s alleged role in the 9/11 attacks was developing the method by which the hijackers smuggled weapons aboard the airplanes, in addition to training the hijackers in hand-to-hand combat. Following co-defendant Ramzi Binalshibh’s denied entry into the United States, his alleged role in the 9/11 attacks was to be the liaison between the chief hijackers and Khalid Sheikh Mohammed. Co-defendant Ammar al-Baluchi’s alleged role in the 9/11 attacks included financial coordination of the hijackers, in addition to procuring a cockpit operations video and flight simulator for the hijackers’ training. Co-defendant Mustafa al-Hawsawi’s alleged role in the 9/11 attacks was financial coordination of the hijackers. Al-Hawsawi’s actions allegedly included draining the hijackers’ bank accounts on the day of the attacks.

Who is the Man Behind the Curtain?

Static filled the gallery’s speakers, and the large video screens which displayed the 40-second-delayed proceedings went blank— to prevent lip-reading— while a red light flashed at the right-hand side of Judge Pohl’s desk. Observation of the hearing was shut down.

As soon as the audio and visual feeds resumed and the flashing light shut off, Judge Pohl expressed two immediate question/concerns: Who ordered the audio/visual feeds to be censored, because it was not on his authority and why were the feeds censored when Learned Counsel for Khalid Sheikh Mohammed, David Nevin, had been discussing theunclassified portion of the Joint Defense Motion to Preserve Evidence of Any Existing Detention Facility? After resuming control of what information would appear on the record, Judge Pohl emphasized his concern that an “external body” is superseding his authority, remarking that it was if “if some external body is turning the commission off.”

Nevin, on behalf of Khalid Sheikh Mohammed, echoed Judge Pohl’s concerns and asked: “Who is controlling these proceedings?”

Learned Counsel for Walid bin Attash, Cheryl Bormann, emphasized  that the mere mention of a motion that contained some classified information seemed to trigger the censorship..

Defense Counsel for Mustafa al-Hawsawi, Navy Commander Walter Ruiz, raised an even more worrisome implication:  If an external body above Judge Pohl’s authority is censoring the audio/visual feeds, that same external body might also be eavesdropping on the defense teams’ communication during the proceedings even when they are not addressing the court. After all, the courtroom is filled with microphones.

Only the Prosecution did not look surprised when the curtain of silence fell upon the courtroom, and they would not discuss what they knew in public.

Counsel discussed these issues in a closed session Monday afternoon, originally slated to deliberate the Military Commission’s Rule 505, which states that an established attorney-client relationship can only be severed for good cause, by the request of the accused, or upon application for withdrawal by counsel. Rule 505 became a pressing issue early in Monday’s session because former-Detailed Defense Counsel for Walid bin Attash, Marine Major William Hennessey, suddenly withdrew from representing his client. Bormann expressed bin Attash’s wish to sever the relationship. However, Judge Pohl stressed the importance of clients themselves, not their counsel or proxies, controlling the severance of an attorney-client relationship when good cause has not been shown, as is the instant issue.

A Case in Point: Denial of Attorney Access to Clients

Before Judge Pohl heard any motions for the day, Ms. Bormann addressed a prevailing issue throughout her representation of Walid bin Attash during the past year: the United States, she argued, obstructs defense counsels’ access to their clients. Bormann and her co-counsel for bin Attash attempted to meet with their client in private at around 8:15, shortly before the proceedings. Bin Attash was present; however, Bormann and her co-counsel were denied any access to their client until he was brought to the courtroom under guard. Bormann argued that today’s barrier to accessing her client was a case in point, following along the lines of other instances of impeded attorney-client access.

Are Defense Attorneys Truly Free to Communicate with Their Clients?

Amidst vocal reactions from the gallery behind the glass, Ms. Bormann  told Judge Pohl, “You don’t live my life.”

Many of the families of 9/11 attack victims present did not, understandably, commiserate with Ms. Bormann. However, Bormann made her remark in the context of her ethical dilemma as an attorney whose attorney-client communication is seized for review by the United States. Ms. Bormann made the point, essentially, that she has not been truly free to communicate with her client since October 2011, thereby depriving her client of her ability to provide a fully informed defense against the charges against him.

Why the Accused Waive Their Rights to Be Present During the Hearings

Cheryl Bormann’s zealous advocacy for her client, Walid bin Attash, was matched in part by her client’s own level of engagement during the proceedings. Bin Attash, with a long, black beard, a head scarf, and a white tunic covered by a camouflage vest, spent much of the proceedings pouring over binders of information through thick, black glasses. Bin Attash made many notes and communicated often throughout the day with his co-defendants.

Anticipating that the accused would abstain from appearing in further sessions this week, Monday’s session concluded with Judge Pohl requiring the accused to answer whether they understood their right to appear at their hearings, and whether they had any questions for him about their rights. All of the accused answered in Arabic, through a translator, that they understood their right to appear at the hearings. But only Walid bin Attash took the opportunity to discuss why the accused, in their own words, waive their rights to be present during their hearings. Bin Attash, a Yemeni, explained excitedly in Arabic that the hearings’ process gives the accused no incentive to appear in court. The accused have been unable to develop trust in their attorneys despite a relationship lasting over a year. Bin Attash clarified that he and his co-defendants do not want this to be a “personal issue” with Judge Pohl. Bin Attash closed his comments by declaring that the Prosecution does not want the accused to hear or understand anything (presumably in reference to their rights and their waivers to appear at the hearings). Bin Attash:

“We have no motivation to come to court. We have been dealing with our attorneys for a year and a half, and we have not been able to build trust with them. Their hands are bound. The prosecution does not what us to hear or understand or say anything. They don’t want our attorneys to do anything.”

Adam Kirchner is a dual-degree student at Seton Hall University School of Law and the Whitehead School of Diplomacy and International Relations. He is a Research Fellow of the Center for Policy and Research and the Transnational Justice Project at Seton Hall University School of Law