The judge presiding at the Sept. 11 death penalty tribunal declined Tuesday to say who cut the audio and video feed to his court for three minutes in an episode that has drawn protest.
The attorney for accused 9/11 mastermind had just spoken the word “secret” on Monday when, as Judge James Pohl put it, “some external body” cut the outside world off from hearing the proceedings.
Spectators in the war court gallery watch from behind soundproofed glass and hear the court on a 40-second delay. A red emergency light spins in court when a censor at the judge’s elbow hits the mute button to prevent someone from spilling national security secrets. Conversation continues, but the public can’t hear it.
On Monday, neither the judge, nor the censor — called a court security officer— had done it.
Defense lawyers expressed alarm. The judge, who is an Army colonel, was clearly furious. He called “a little meeting about who turns that light on or off,” then went into a classified court session followed by an off-the-record chambers conference with defense and prosecution attorneys for nearly three hours Monday evening.
On Tuesday morning, Pohl flatly announced that the feeds should not have been cut off. Only he has the authority to close the courtroom, he said.
“It is not the court security officer’s decision or anybody else’s whether a particular session or part of a session is closed,” Pohl announced. “The 40-second delay is a prophylactic measure to avoid a more difficult unringing of the bell if improper information is disseminated.”
He then explained that attorney David Nevin, defending alleged 9/11 mastermind Khalid Sheik Mohammed, had not spoken any secrets and had simply referred to “the caption in a particular appellate exhibit that is unclassified” when he was mysteriously muted.
The judge did not disclose the wording of the caption. He said it was part of a motion seeking a protective order on 2002-2006 CIA interrogation sites.
“In this particular case, Mr. Nevin’s comment that resulted in the interruption I find is not a valid basis for the court to have been closed,” Pohl ruled.
The judge did not issue an explicit order to release a transcript of the three-minute censored portion of the Monday hearing. Nor did he provide a public explanation of who else has the technical power to purposefully cut off the courtroom audio.
A case prosecutor responsible for sorting out secrecy issues at the 9/11 trial, Joanna Baltes, told the judge that the “OCA,” shorthand for the original classification authority, has the power to review the feeds. Because the CIA ran the secret interrogation sites, the agency is considered the original classification authority on the secret prisons called “black sites.”
Her remarks did not make clear whether the CIA has an audio kill switch.
Verbatim | PROSECUTION DEFENDED OUTSIDE CENSOR
Here’s was the “classification guidance” that the prosecution’s secrecy expert, Justice Department lawyer Joanna Baltes, handed to Judge James L. Pohl during Tuesday’s hearing: “OCA, original classification authority, reviews closed-circuit feed of the proceedings to conduct a classification review to ensure that classified information is not inadvertently disclosed. When the parties do press the mute button on the microphone, no audio is transmitted through the closed feed.” The judge read it aloud in court.