The problems of holding the trial of the alleged masterminds of the September 11, 2001 terrorist attacks at Guantanamo Bay in Cuba were on stark display again at Monday's hearing, as defense lawyers argued the proceedings should be delayed once again so they can determine who may be monitoring their attorney-client communications.
More than 11 years after the attacks, the trial of Khalid Sheikh Mohammed and his alleged co-conspirators still isn't anywhere near getting off the ground as the lawyers and judge are repeatedly stymied by the novelties of a high-security courtroom built on the remote U.S. military base in Cuba especially for this case. The courtroom is wired so observers only hear the proceedings on a 40-second delay. That way, government censors can black out any unanticipated statements containing classified information. But it now seems there are two very different audio feeds of these proceedings. And no one seems to know who hears the more sensitive one, or how that might affect the defense lawyers' ethical obligations.
James Connell, a lawyer for Ammar al Baluchi, told Col. James Pohl, the judge presiding over this military commission, that "the audio feed that the OCA hears is not the same audio feed that the general public hears." An OCA is an "original classifying authority," which is a government official with the authority to decide what's classified. "Defense counsel had been assuming that the OCA hears the same feed as everyone else," Connell said. "It's the difference between gated audio and ungated audio."
According to Connell, apparently based on investigation he did over the weekend, the microphones are extremely sensitive and pick up even the faintest sounds in the courtroom, including chatter among military guards or lawyers. Although the audio feed that reaches the public is filtered, the government censors and the court reporter receive the extra-sensitive feed -- which, it turns out, could include attorney-client communications.
"The reason we don't hear all the chatter that happens in the courtroom is because there is a filter applied," explained Connell. "That filter is a gate."
That gate doesn't allay the concerns of defense counsel, who, pursuant to the most basic rules of legal ethics, must keep confidential their conversations with their clients.
"I have been practicing law for 25 years and never before have I been put in the position where I have to ask the following question," said Cheryl Bormann, a lawyer for Walid bin Attash, clad in a black hijab to show respect for her client, who was seated in the courtroom, as were his co-defendants. "Am I being listened to when I talk to my client?"
"My concern is I can't have a communication with my client in this court without it going on the record."
Bormann said there is "overwhelming circumstantial evidence" that's the case. She and the other defense lawyers say they need more time to interview witnesses to confirm it.
Aside from the question of the courtroom microphones, the government's own brief filed last week says that all interview rooms where the defense lawyers interview their clients are equipped with audio monitoring devices. Although the government says they're turned off, Bormann is skeptical. Bormann said that in the past, when her client had expressed concerns that the government was listening to their conversations, she'd assured him their confidentiality was being protected. Turns out the devices that looked like smoke detectors were actually audio monitors.
David Nevin, Khalid Sheikh Mohammed's lawyer, also asked for more time to investigate. He said he hadn't even had an opportunity to interview the government's witnesses who will testify to the courtroom technology before today's hearing, as he'd only returned to Guantanamo over the weekend.
"This is one of hundreds of examples of ways in which the government's choice to hold these hearings here at Guantanamo at this relatively remote location prejudices our ability to defend the case," he said.
"We're still learning how this works," he said of the specially-built courtroom and audio equipment. "It's part of the problem of doing the case here."
After hearing from all sides, Judge Pohl recessed for the day, promising to resume the hearings tomorrow with testimony from government officials who could explain how the 9/11 courtroom technology works.