Defense lawyers in the Sept. 11 case said they were worried Thursday about outside agencies listening in on their privileged conversations, and sought a freeze in the death-penalty trial.
“After this week, the paranoia level has kicked up a notch,” said Jay Connell, the Pentagon-paid lawyer for Ammar al Baluchi. Baluchi’s uncle, Khalid Sheik Mohammed, is the alleged 9/11 plot mastermind and the lead defendant in the case.
The latest controversy to bedevil the war court came on the day Guantánamo’s chief judge ordered unnamed government agencies to unplug their censorship switches that reach into the $12 million state-of-the-art courtroom.
On Monday, the judge, Army Col. James Pohl, erupted in anger when an outside censor cut off audio from the court to the public during unclassified arguments by Mohammed’s lawyer, David Nevin, at the word “secret.” Pohl has been trying to balance transparency in the case with protecting national security secrets.
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Pohl “didn’t even know there was an outside entity controlling the courtroom,” said Navy Cmdr. Walter Ruiz, defense lawyer for Saudi Mustafa Hawsawi.
Nevin, spoke of “shadowy third parties” with the power to intrude on the judge’s courtroom adding:
“We have significant reasons to believe that we have been listened in on — not just in the courtroom.” For an example, Nevin said that the Guantánamo prison requires that, before private conversations between attorney and client, the lawyers must divulge what language they’ll be speaking.
For his part, Army Brig. Gen. Mark Martins, the Pentagon’s chief prosecutor, would not say how many outside intelligence agencies had an audio kill-switch at their disposal outside the courtroom.
Nor would he say whether the agents who control the mute buttons — representing, in intelligence-speak, the Original Classification Authority, or OCA — were monitoring the Guantánamo security court proceedings.
“The prosecution never listens to any confidential communications between the accused and their counsel,” said Martins. “To do so would be a blatant violation of our professional responsibilities and our oaths to serve justice.”
Martins also would not say whether the censors were stationed at the remote U.S. Navy base or tuning in from U.S. soil.
“Who is pulling the strings? Who is the master of puppets?” Ruiz asked reporters in a news briefing. “Is this a system that you can believe in?”
Veteran death-penalty defender Jim Harrington, attorney for alleged 9/11 plot deputy Ramzi bin al Shibh, said the latest censorship episode was a dramatic illustration of the difference between federal courts and the Guantánamo tribunals. Had a civilian judge realized an intelligence agency was merely listening in on the court, said Harrington, that judge would’ve ordered a criminal investigation — of the government.
“This proceeding would’ve been stopped — there’d have been hell to pay,” he said.
The judge recessed until Feb. 11 the pretrial hearings in the case of the five men accused of creating the plot and then training and financing the hijackers who killed nearly 3,000 people on Sept. 11, 2001. First up: The defense lawyers’ request to freeze the proceedings pending an investigation of who has been listening in, and where.
War court hearings resume next week, however, in the death-penalty case against the alleged USS Cole bomber, Abd al Rahim al Nashiri.
In response to Thursday’s developments, Nashiri’s lawyer, Navy Lt Cmdr Stephen Reyes, said he was filing an emergency motion to first hold a hearing with a government witness “to testify as to the extent of third party monitoring and censoring.”
Nashiri is the alleged mastermind of al Qaida’s October 2000 suicide attack on the warship off Yemen that killed 17 American sailors.