There is no evidence that anyone listened in to confidential meetings between a Guantánamo war crimes defendant and his lawyer, at least during the last two years, a U.S. military judge said in a ruling made public on Tuesday.
Therefore, the judge ruled, there is no need to issue an order prohibiting future monitoring of attorney-client meetings.
The ruling came in the death penalty case against alleged al Qaeda chieftain Abd al Rahim al Nashiri, a Saudi prisoner accused of orchestrating the bombing of the USS Cole off Yemen in 2000. Seventeen U.S. sailors were killed when suicide bombers detonated a boat full of explosives against the warship's hull.
In a February hearing at the Guantánamo Bay U.S. Naval Base in Cuba, Nashiri's lawyers asked that pretrial proceedings be halted until they could determine whether military or intelligence agents were eavesdropping on supposedly private meetings with the defendant.
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The request followed revelations that what appeared to be smoke detectors in the meeting rooms were actually microphones, and that intelligence agents outside the courtroom had cut the public audio feed in the mistaken belief that secrets were being discussed at another hearing. The microphones and the outside kill switch have since been disabled, according to court testimony.
Prosecutors and a defense technical expert subsequently searched for records of any monitoring and found none, the ruling said.
At an evidentiary hearing in June, the top legal adviser for the task force that runs the prison and the Army officer who acts as the warden both testified under oath that there had been no monitoring of attorney-client meetings during their tenure.
The judge, Army Colonel James Pohl, said their testimony was convincing and no evidence had been found to contradict it.
"While neither officer could possibly testify to what may have happened for the prior 10 years of detention at Guantánamo Bay, their testimony established beyond the required evidentiary threshold that monitoring has not occurred" since the current charges were filed against Nashiri in September 2011, Pohl wrote.
The judge said the confidentiality of attorney-client communications was sacrosanct under U.S. law and that any unlawful invasion of those conversations by any government agency "would be viewed very dimly."
But without evidence of past monitoring, the judge said, it would be superfluous and "a judicial overreach" to issue an order prohibiting future monitoring.
Nashiri's lawyers could not immediately be reached for comment on the ruling, which was dated August 5 and released publicly on Tuesday.