Questions about monitoring of privileged attorney-client communications continued to swirl around the pre-trial hearings taking place at Guantanamo Bay on Wednesday.
Whether government officials have eavesdropped on privileged attorney-client communications as defense lawyers prepared their case for trial has dominated the last few days of hearings in the case of the five co-defendants accused of masterminding the September 11, 2001 terrorist attacks.
What became clear on Wednesday is that even if someone was monitoring those meetings, the commander in charge of detention at the U.S. naval base might not have known about it.
In fact, Colonel John Vincent Bogdan, commander of detention at Guantanamo, admitted on the witness stand he didn't even know until just a few days ago that the cells used by lawyers to meet with their clients were bugged. When he assumed control of all detention facilities on the base last June, no one ever mentioned it, and he never asked.
Col. Bogdan was told, however, that security cameras are installed in the rooms.
Witnesses have testified this week that the audio surveillance devices were not in use during attorney-client meetings. But there appears to be no official record of when those microphones were in use, why they were placed there and why they were never removed. They were repaired and upgraded in December, without Bogdan's knowledge.
Bogdan testified Wednesday that the cells where defense lawyers meet with so-called "high value detainees" such as the five defendants in this case are used only for attorney-client meetings, visits with detainees by representatives of the International Committee of the Red Cross, or ICRC, and medical examinations related to the detainees' legal defense. All of those are supposed to be confidential.
Although he's trained as a military police officer, Bogdan said he never noticed the microphones on the ceiling, which look like smoke detectors. Indeed, that's what he thought they were, he said, although he also testified he now thinks they're easily identifiable as microphones.
The audio and video monitoring systems were originally installed by the FBI, and turned over to the military in 2008. All technology in the meeting rooms is controlled by military intelligence officers.
Bogdan said he was told that the intelligence agency on the base, known as J-2, maintained the cameras, but he was never told about the audio. He says he only learned about the audio surveillance capability after the issue came up in these military commission hearings.
That's particularly odd because in December, shortly after he assumed his command, J2 sought permission to repair the surveillance equipment in those cells from Bogdan. He granted it, but didn't realize he was approving repair and upgrade to the audio surveillance system. After all, he didn't know it existed.
"J-2 only said they needed to do upgrade and repair of the video system in December," Bogdan testified.
On Tuesday, Capt. Thomas Welsh, the senior military lawyer at Guantanamo, testified that the audio surveillance system is not used to monitor attorney-client communications. Welsh was only aware of one time when it was used, when he observed someone listening in to a meeting about one of the defendants between prosecutors, defense counsel and FBI agents. He had not known of the audio surveillance capability before then and was assured by the Guantanamo detention commander that it is not used to monitor privileged conversations.
On Wednesday, however, defense lawyers raised some serious questions the witness was unable to answer.
For example, asked David Nevin, attorney for Khalid Sheikh Mohammed, the alleged 9/11 mastermind, why was the audio system upgraded if it wasn't being used?
Bogdan testified that he didn't know; perhaps because it was broken.
We learned about lots of other broken systems at Guantanamo naval base that haven't been repaired, however.
Take, for example, the system for delivering mail to high-value detainees.
As Navy Lieut. Alexander Homme testified this morning, as a Guantanamo lawyer he was instructed to screen all legal mail sent to the high-value detainees. Anything that was not written by the detainee's attorney had to be rejected. Even if it was a publicly available article, legal brief or book attached to an attorney's letter to explain something in the letter, he would have to reject it and not allow the detainee to receive it.
That didn't mean the detainee could never see the item. Rather, under Guantanamo prison rules, documents not personally created by the detainee's lawyer would be sent back to the United States and re-sent to Guantanamo Bay via a post box in Florida. According to defense lawyers and reported complaints from the detainees, it took several more months before the detainee actually received it.