Case Coverage: 9/11 Case

2/12 Hearing #2: Audiovisual Club Part Two

By Wells Bennett
Tuesday, February 12, 2013, 11:48 AM

Prosecutor Clay Trivett questions Elkins, turning first to his professional qualifications.  The witness understands how the courtroom systems work---even those systems in which he isn’t formally “certified?"  Yes.  And Elkins again confirms that the court reporters have special software that can isolate individual audio channels from the broader, undifferentiated mass of audio signals that are piped to them.  There’s no other way for any other party to record, Elkins testifies; without the reporters' special software (called "FTR Gold"), one can only listen in.   The pregated---that is, open---feed may travel, but only if sound reaches a particular decibel level.  Elkins affirms that FTR Gold is commercially available and the industry standard.  But court reporters cannot, for instance, amplify whispered or quiet sounds that particular microphones detect.  The recordings are preserved on hard drives, to which Elkins and his staff have access. But no one from the prosecution has ever asked Elkins for the audio recordings, nor has any other entity of the United States government.  And Elkins wouldn’t surrender them on request, either---a motion would be required.

The witness also says that the accused’s table speakers, over which translation is broadcast, did not affect the microphones at defense counsel table.  There are a few more notes about the difference between the recent past and present; Elkins confirms that, under our old approach, a microphone’s “mute” feature would preclude overhearing by that microphone.  And while low volume-speech might be detected by the court reporters’ FTR software, the live feed from the courtroom could not be.  The witness agrees with Trivett’s hypothetical, too: the lawyer suggests that, with all of the ambient noise from all thirty-two of the courtroom’s microphones, the OCA and translators will overhear what sounds only like chatter in a crowded restaurant.  The latter two won’t be able to isolate individual microphones, like the court reporter can.  Finally, Trivett asks about Elkins’ past precautions.  Didn’t he put up warning signs, reminding counsel to hit the “mute” button for sidebars?  Elkins did indeed.  It is up to the attorneys to protect their conversations, he seems to say.  Elkins likewise notes that the accused can view CCTV broadcasts from trailers adjacent to the ELC.  But there are no microphones there.

Now David Nevin has questions for Elkins.  The counsel table never addressed the muting of all microphones---but only addressed the need to mute particular microphones at counsel table, right?  Well, some additional caution was assumed, says Elkins.  Not good enough: the court stops him, and the witnesses acknowledges that, no, his placards didn’t warn counsel about what microphones at other locations besides counsel table might detect.  The witness likewise accepts that sufficiently loud, intoned comments could be overheard, too---by microphones as well as people.  Elkins, when pressed, also confirms that the ungated feed goes not merely to the court reporter, but also to the OCA.  But he underscores that tone and volume level determine what, exactly, the two recipients of the feed can and cannot hear.

There’s a bit of humor, as Nevin and Elkins catalog the room’s working mics: Elkins pushes his microphone’s button, to disable it, and states that he therefore can only be heard in the courtroom (which obviously isn’t true: all in Smallwood hear his remarks).  The witness insists that only his office makes recordings of courtroom audio---the OCA doesn’t do that.  The court chimes in, summarizing what, in its mind, Elkins testimony stands for: the OCA’s feed is undifferentiated, and often consists of ambient noise.  Without FTR software, OCA can’t pick out this or that muttering.  Nevin presses hard finally: you don’t know what the OCA does with the sound it receives, do you?  No Elkins doesn’t, in fact.  Thus, Nevin argues, it is at least possible that the OCA could record courtroom audio? The lawyer similarly observes that the OCA might buy its own FTR software, and engage in the same sort of parceling out that the court reporters engage in.  We then move to an odd colloquy: the lawyer wants to know whether Elkins interfaces with the OCA, as part of his work; Elkins says he cannot tell who he talks to from one day to the next, because nobody shows him credentials.   His duty is merely to interact with people, broadly defined, though he doesn’t interact with detention personnel at Guantanamo, or with the base's FBI field office.  Elkins also denies having ever suggested that only court reporters receive the live, ungated feed.

Connell returns to Elkins’ claim that parties other than the court reporters cannot record what they hear---having in mind the interpreters, and the OCA.  The prosecution objects to this as it was already asked and answered during the witness’s discussion with Nevin.  Judge Pohl sides with Trivett, and proceeds to quibble with Connell about what his inquiry genuinely goes to. But in any event, the witness doesn’t have knowledge about the OCA’s technical capabilities.  Anger overtakes the court when Connell again asks about OCA equipment---you’ve already gotten your answer, Judge Pohl says, and you're stuck with it.  He doesn’t know what the OCA’s capabilities are.  (Weirdly, when asked roughly the same question a third time, Elkins answers that he cannot delve into classified stuff.)  Connell presses again on the open feed, which, Elkins acknowledges, can be heard by the OCA under certain conditions.  Then Connell again ventures into the subject of OCA equipment—and again draws an objection from Trivett, a chiding from Judge Pohl, as well as (oddly) a reference to potentially classified material by the witness (who, as we know, earlier had denied all knowledge of OCA technology).  The try prompts argument about Rule 505, and the invocation of the classified information privilege by the government.  The court instructs the defense attorney to move on, which he does.  A few more questions, and Connell winds down.

Here’s Cheryl Bormann.  Mr. Elkins, you aren’t in charge of the court reporter?  No, he isn’t, and thus doesn’t know what the reporters do with the audio they receive.  Thus, the court reporter---and not Elkins---would be the contact point for audio recordings. CDR Walter Ruiz, Mustafa al-Hawsawi’s lawyer, rises to say that he might have a question---but doesn’t know.  He adds that his inquiry might upset the court; he’s eager, obviously, to push Elkins on seemingly inconsistent answers about the OCA’s ability to record audio.  How can Elkins not know what the OCA’s capability is on the one hand, and then surmise that the OCA doesn’t record what it receives, or that it cannot separate out audio channels on the other?  Elkins cites his own experience: to his knowledge, on the court reporter can record.  Ruiz presses: do you or do you not know what the OCA can do?  Elkins filibusters, and says he cannot speculate.   He doesn’t know what anybody’s capability is.

So much for Elkins; we’ll push now to COL Bogdan and CAPT Welsh, who are ready to testify on monitoring matters.  But first---a quick bathroom break.