The Pentagon declined to explain on Thursday why the 2017 discovery by USS Cole case defense lawyers of a microphone inside a Guantánamo room for confidential legal meetings was a national security secret, a day after the Miami Herald reported that a declassified prosecution account said the devices were disconnected.
“Detention facility capabilities and procedures are classified,” Department of Defense spokeswoman Heather Babb said in response to a question for the war court prosecutor submitted a day earlier. “I cannot provide additional details.”
This wasn’t the first time defense lawyers found an ostensibly disconnected microphone in their meeting room. In 2012, 9/11 case attorneys discovered a listening device hidden inside an object that looked like a smoke detector in the Camp Echo huts where defense lawyers meet and plan trial strategy with the alleged 9/11 plot mastermind Khalid Sheik Mohammed and his accused co-conspirators. But that trial judge handled the issue differently.
Army Judge Col. James L. Pohl let defense attorneys question the Army guard force commander and Navy prison attorney in open court in February 2013. Army Col. John V. Bogdan testified that nobody was listening in — despite the fact that the bugs were disconnected by military engineers renovating the site, and then restored by an intelligence unit once the renovation was complete.
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The war court subsequently released a photo of the eavesdropping device as part of the public court record.
This time, Air Force Col. Vance Spath, the USS Cole case judge, refused to let defense lawyers investigate. Based on filings from the prosecution that the defenders couldn’t see, he issued a classified ruling that the public can’t see.
The stalemate prompted three civilian lawyers for the alleged planner of the 2000 warship bombing — Rick Kammen, Rosa Eliades and Mary Spears — to quit the case in October, two months after they spotted the listening device and were denied information about it.
Last month, Spath halted pretrial proceedings in the case against Abd al Rahim al Nashiri, a Saudi accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the USS Cole destroyer in the port of Aden, Yemen, which killed 17 U.S. sailors and wounded dozens of others. The judge had tried to get the trial back on track amid questions about whether it could go forward without Kammen, who is an American Bar Association approved death-penalty defender, to guide the defense.
At one point, the judge ordered the chief defense counsel for military commissions, Marine Brig. Gen. John Baker, to reinstate Kammen, and then convicted Baker of contempt for refusing to do so. Spath ordered the general to spend 21 days confinement in his trailer behind the war court compound, but a senior Pentagon official suspended that sentence after two days, as a federal judge was poised to rule on whether Baker had received due process.
Across a series of hearings since October, Spath said the episode was classified, and that he had no authority to let the lawyers discuss it with the accused — something the Pentagon spokeswoman appeared to affirm in the two-sentence statement, despite the Herald’s disclosure a day earlier of a declassified prosecution account in a filing this week at the U.S. Court of Military Commissions Review.
Babb, in fact, did not respond to a question of whether she passed the question to the Chief War Crimes Prosecutor, Army Brig. Gen. Mark Martins, or was answering for herself. In November, Martins stopped taking questions from reporters.
Now, members of the media with questions for the prosecution submit them to either military or civilian public affairs specialists at the Department of Defense office of Secretary of Defense Jim Mattis, where Babb works.