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2/12 Hearing #1: Audiovisual Club Part One

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Tuesday, February 12, 2013 at 10:30 AM

The Smallwood Screen comes alive, with Judge James Pohl seated at the familiar, authority-emanating bench.  A glow likewise surrounds the wall’s JTF insignia; it seems to say, “let us reconvene and discuss attorney-client communications.”  So we do, at 9:02 a.m.  Prosecutors and defense lawyers are present, along with three of the five accused—Khalid Sheikh Mohammed, Ramzi Binalshibh, and Walid Bin Attash.  FBI and other government agents are here, too.

Housekeeping first: Prosecutor Robert Swann calls his usual witness, a JTF staffer, to testify about the two absent accused, Ammar al-Baluchi and Mustafa al-Hawsawi.  The lawyer asks, and the JTF staffer confirms, that both men were advised of and understood their rights to attend, but knowingly waived those rights.

With procedure done, we move to the substance, and to AE133, and the alleged monitoring of confidential attorney-client discussions. The court immediately asks KSM lawyer David Nevin about the latter’s proposed remedy for the alleged monitoring.  He pivots a bit. The government, argues the lawyer, must demonstrate that it has not benefited from any improperly acquired communications.

The Chief Prosecutor, Brig. Gen. Mark Martins, is keen to nip any lengthy counsel argument in the bud; he thus interrupts and notes the narrowness of the inquiry before the court.  When asked about Nevin’s proposal, Martins asks to get information—rather than argument or speculation—on the record.  Judge Pohl affirms that argument and proffers are not evidence.  He also returns to his own well-worn theme, by emphasizing what is not before him: who hits the censorship button, and whether the proceedings can be heard generally.  The question instead is whether protected attorney-client conversations indeed can be monitored; and, if they can, what the court ought to do about it.  This brings us to the evidence.

Maurice Elkins, the CCTV program manager since 2008, is the defense’s witness.  J. Connell III, al-Baluchi’s lawyer, questions him. When asked, the witness distinguishes between “gated” and “ungated” audio: in the former, a microphone doesn’t “hear” until it detects a particular tone or decibel threshold; the latter, however, “hears” everything, as nothing requires the equipment to stop picking up sound.  (Elkins illustrates this almost musically, by varying the pitch of his voice.)

On from sonic to documentary evidence.  Connell walks Elkins though an exhibit, evidently a diagram of courtroom audio technology.  Giggles erupt in Smallwood, as the document is illustrated on the screen immediately behind Elkins—who refuses to identify it, because, he says, it is classified.  It turns out that it isn’t secret at all, but is instead what it appears to be: a map of audio flows, or what the editors of Tape Op would call a “schematic.”  In it, the courtroom’s various microphone placements are indicated, along with a digital mixing board.  A jittery Elkins isn’t especially eager to talk tech shop, again insisting that his answers about signal flows would be classified.  The prospect of Radio Shack in the Expeditionary Legal Complex visibly bothers Judge Pohl, who urges Connell to move along briskly.   One signal flow—of the many—runs to what we’ve called the OCA, right?  Yes, it does, says Elkins.  And, the witness adds reluctantly, there’s a different threshold-level for that than for other microphones in the courtroom.

Connell continues with this line, which Judge Pohl stops—he’s profoundly disinterested in the mechanics of how sound travels, and focused utterly on whether lawyer-client talks are overheard.  Eventually, the court asks: can all mics be set to be “gated?”  Yes, they can. Connell is confused by the court’s increasing irritation: he thought this was his only chance to examine Elkins, and finds the latter’s testimony to be necessary for potential compliance’s sake.  Thus he inquires further about how alterations to the audiovisual equipment might be documented; Elkins, we learn, previously adjusted the audiovisual setup, in response to Judge Pohl’s order regarding the censorship button, but didn’t record those changes.   Why not?  We don’t learn because Judge Pohl finds the question irrelevant, and again chides Connell about straying beyond the narrow issue posed by AE133.  Documentation is done, counsel; move on.  The lawyer doesn’t quite do so, and again presses, and scores a few points.  Elkins cannot say how the defense would ever know if, indeed, audio tweaks were made pursuant to a court order—in that case, Connell and company would have to ask for “proof,” whatever that might mean.   There’s a bit more about compliance, and mic matters, and Connell sits.

The podium belongs to the Abaya-ed Cheryl Bormann.  How many channels go into the pre-gated feed?  All of them, says Elkins.  And how many go to the court reporting software? Eight.  So, Bormann asks, if, say, J. Connell were permitted to listen to two of those eight mics, how could they be identified and separated out?  The query bothers Elkins, who emphasizes that individual audio channels cannot be broken out without special software.  Does the court reporter have that software?  Elkins doesn’t say yes or no, but acknowledges that the reporter can isolate certain channels upon playback.  The OCA, though, can’t do so.  Binalshibh’s lawyer, James Harrington, queries about what Elkins knows about the OCA’s receipt of a special audio feed: Elkins alternately refuses to answer, or says he cannot speculate.  But Elkins didn’t talk to prosecutors previously about audio feed matters to third parties, despite his knowledge of where audio feeds from the courtroom traveled.

A final point by Judge Pohl, who seeks clarity on our new, “push to talk” arrangement.  The witness explains that, yes, the regime now is “button on, microphone on.”  That’s a quite recent change though—under the prior approach, microphones would remain on unless a lawyer pushed the button. Overhears were possible.

Prosecutors ask for, and get, a brief recess.