Military Commissions

2/11 Hearing #1: Who Hears What, the Chow at Guantanamo, and a Brief Delay

By Wells Bennett, Sophia Brill
Monday, February 11, 2013, 10:47 AM

At 9:01, Judge Pohl takes the bench, authority-emanating robes and all.  All parties are present, including the five accused.  Prosecutor Robert Swann notes the continued presence of FBI personnel and an NYPD officer, who might eventually serve as witnesses.  KSM lawyer David Nevin rises, in order to preserve his objection to those persons ever taking the stand.

Our first (and, as we'll soon discover, only) order of business is AE133, and who can hear what, of the defense’s confidential conversations with their clients.

But Nevin says he needs more time to investigate that issue.   The logistics of GTMO travel have thwarted him so far; defense travel arrangements had been made well before the monitoring issue had come to light.  Afterwards, Nevin and company departed GTMO, only to return this past weekend.  The attorneys thus haven’t had the opportunity to look into the facts surrounding monitoring just yet---though two government witnesses, CAPT Welsh and COL Bogdan, apparently will be available today.  But Nevin hasn’t yet interviewed them, on account of another investigation last night (though he notes that two of the other defense teams have done so).  He’s at a bit of a disadvantage, for purposes of AE133---in particular, his ability to respond to the government’s written submission.  He asks for a complete abatement of the proceedings, until AE133 is resolved

Weird, observes Judge Pohl:  You filed an emergency, expedited motion, and now ask to stop the proceedings entirely?   Do you have any evidence of monitoring of privileged conversations?  Indeed Nevin says he does.  But this motion derives also from the defense’s reasonable fear of eavesdropping.  Judge Pohl pushes back:  This whole thing started when the OCA cut the feed of the proceedings, but that only has to do with monitoring something that’s already broadcast to the public (i.e., Fort Meade).  What does it have to do with monitoring of attorney-client communications? What is the basis for the defense’s “reasonable belief” that communications are being monitored---and why should we stop everything to investigate?  How long would you need to investigate, anyway?

Nevin wants 24 hours from the time he’s able to conduct interviews with witnesses relevant to the monitoring issue.  His position is based on the facts that (1) an OCA is monitoring the proceedings, combined with (2) that the microphones can pick up what’s being said in court.  Judge Pohl asks whether Nevin truly is surprised to learn that intelligence stakeholders are monitoring a hearing that is already transmitted to places like Fort Meade.  Nevin concedes that, no, that’s not really such a shock.  But he reiterates:  If someone had the ability to hit the “kill switch,” then that person must be listening to communications before they go out to the public on the 40-second delay.  At any rate, the defense lawyers meet with clients in places that are “owned” by intelligence operatives.  The “kill switch” incident, he seems to say, triggered broader suspicion on the defense’s part.  Because of it, the defense lawyers cannot accept the government’s claim that it isn’t listening to privileged communications.

Their colloquy proceeds in circular fashion.  Nevin underscores again that defense lawyers must have confidence that they’re not being monitored. And since the defense isn’t prepared to address those issues fully today---due to the logistical issues mentioned above----it must have additional time to investigate. This goes to the core of the trial’s structure, he says; and the ethical rules would prevent him from going forward, absent assurances that attorney-client communications will remain confidential. Ok, Judge Pohl says, but can you seriously investigate all that by 9 a.m. tomorrow?  Nevin says he wants 24 hours, starting after he’s had a chance to interview the witnesses.

Over to the Chief Prosecutor, Brig. Gen. Mark Martins.  Does he oppose Nevin’s proposed delay?  Martins does.  The parties have interviewed witnesses on courtroom matters already.  And no evidence has been offered at any point that, by following muting and other instructions, counsel cannot shield confidential chats from overhearing.  Witnesses also are available, now, to talk about the listening equipment here.  Moreover, argues Martins, the defense filed the motion on an emergency basis, and insisted on a quick briefing schedule.  He’s keen to get the facts on the record presently, in order to shore up confidence and reassure the defense.

James Connell III, lawyer for Ammar al-Baluchi, rises to address one critical fact: the audio feed that the OCA hears is not the same audio feed that the public hears.  Judge Pohl raises an eyebrow:  You think there’s a second feed?  Yes, Connell says, and the matter goes to the difference between “gated” and “ungated” audio.  The reason general chatter isn’t overhead is a filter, called a “gate.”  But it turns out the OCA’s listening equipment isn’t governed by any gate.  It hears everything---all sounds in the courtroom, with no filter whatsoever.  It thus doesn’t matter whether one hits this or that muting button for one microphone; other, ungated microphones remain live, and can pick up the accused’s discussions with their lawyers.  The Chief Prosecutor wonders:  Why shouldn’t we hear this evidence, your honor, instead of defense counsel’s proffer? A witness, Mr. Elkins, could testify to this.

Connell moves to a related matter: the ungated OCA feed also happens to be the same feed that goes to the court reporter.  Connell has filed a motion to inquire into that.  Judge Pohl stops him, apparently having Elkins in mind: you’re getting to the merits, counsel.  The issue here is whether to reach the merits at all, right?  The lawyer dissembles a bit, when the court asks again:  Is your position that we ought to hear from the witness now, or to delay?  For Connell, access to the court reporter audio could moot the need for some further investigation.  But he adds that he needs the court’s assistance:  Elkins thought himself constrained about what the witness could and couldn’t say about the OCA feed, absent input or an order from the court.

Connell sits, and Cheryl Bormann stands, Abaya and all.  Am I being listened to when I talk to my client, she wonders aloud.  It turns out she knows already: the allegations in her motion amount to “overwhelming circumstantial evidence” of inappropriate snooping.  (By the way, she seconds Nevin’s request for an abatement or delay.)  One example: audio monitors, says Bormann, have been installed in client meeting rooms, but these resemble smoke detectors.  Previously, Bormann had reassured her suspicious client that meeting room discussions would be purely confidential----having asked a guard about the seemingly innocuous smoke detector, and having been told that, no, nobody listens in on your confidential meetings.  Separately, she’s spoken to COL Bogdan about the prospect of audio monitoring, and asked the government to preserve emails about that issue.  But her preservation request was denied as, incredibly, overbroad.  She’d only asked for a few months’ worth of emails.

Judge Pohl returns to the day's leitmotif:  this is discovery stuff, not witness testimony or the merits.  What’s your position?   Bormann doesn’t explain, but complains about the denial of her discovery requests (and, separately, the dismal food served at Guantanamo).  Eventually, she shows her cards:  Yes, a brief delay is warranted.  She adds that the “mute” button, for in-court microphones, isn’t actually a mute button at all!  The misnomer talk draws an interruption from the prosecution, which is bursting to introduce real evidence, rather than these free-flowing summaries from defense counsel.  Bormann underscores:  I can’t talk to my client in this room, without the discussion making its way into the record.  That’s a huge problem.

Martins rises. First, and importantly, he wants to point out that the facility at GTMO serves great chow. On the courtroom A/V tech, he proposes one remedy to allay the defense's fears:  We could switch from an open mic system where you push a button to mute, to one where mics are off and you push a button to talk.  That might be done during a lunch recess, when defense counsel could also speak to CAPT Welsh.  Bottom line:  We can put some big concerns to rest by having some of these witnesses testify that none of this attorney-client monitoring is going on.  The Chief Prosecutor's  “push-to-talk” change would in no way concede that any improper monitoring has gone on, he stresses.

Judge Pohl asks if defense counsel has any objections to the prosecution's idea, given the defense's earlier request to preserve audio equipment as-is.  That’s fine, Connell says.  We just want whatever changes are made to be documented.  But he desires the ability to listen to any audio-related rulings that have been made, and an order allowing courtroom staff to speak about courtroom equipment capabilities. The government has no objections on the first matter, so that’s taken care of.  But Judge Pohl denies the second motion. He’s not going to give unfettered authority to court staff to answer any questions that defense counsel might have. Better to bring witnesses to court for examination.

Judge Pohl then brings up the issue of whether it’s OK for defense counsel, when they’re listening to these recordings, to hear matters that may be subject to other defense teams’ privileges.  He assumes defense counsel have no objections, but wants to be sure nevertheless. Nevin: OK by me. Bormann: samesies.

Hearing no further objections, the court grants the government’s motion to change the mics to “push-to-play” mode, along with the recess necessary to do so.  Consequently, bringing Elkins to testify today probably won’t be fruitful; the witness would have to testify immediately afterwards, anyway, about the recent “push-to-play” modifications.  And Bogdan won’t be available until 15:00 this afternoon.  With this all in mind, Judge Pohl will push off the hearing until 9:00 a.m. tomorrow morning.  He is NOT happy about doing so.  But given the uniqueness of the situation (or, at least, what the defense says it now believes, based on the kill switch incident), he’ll allow a one-day postponement. 

Our discussion naturally shifts to procedural odds and ends.  Cheryl Bormann wants an order directing Welsh and Bogdan to avoid viewing the proceedings, either in person or remotely, before they testify tomorrow; the government goes along with her request.  And Nevin notes upcoming briefing on evidence of eavesdropping, too---he’d like to file that on an unclassified basis, in contrast to the defense’s initial motion.  That’s also fine, though the court notes the usual Guantanamo security protocols will apply to the brief.

Finally, it’s voluntariness time!  Since everyone is here, Judge Pohl wants to advise the defendants of their rights to be present. He’ll want a verbal response---or else they won’t have the option to not show up tomorrow. So he reads out the usual boilerplate on the right to be present at any portion of the proceedings, the right to show up to subsequent proceedings even if the right is waived for earlier ones, and so forth. He makes the rounds: KSM understands; Bin Attash understands; Bin Al-Shibh understands -- but wait! -- now we’ve gone mute.  The accused appears to confer with his counsel; there’s a pause.  A moment later, we see (but do not hear) the parties all rise, and then our Smallwood Hall screen shows only an empty bench.  It has the feel of a recess.

See y’all tomorrow.  By then we’ll know whether the audio cut-out indeed was a glitch---which it seems to have been.