Case Coverage: Al Nashiri Case

2/4 Al-Nashiri Hearing #1: Microphones, Monitoring, an Angry Judge, and a Recess

By Benjamin Wittes
Monday, February 4, 2013, 10:41 AM

It’s 9:01 am, and Military Judge James Pohl enters the courtroom, resplendent in his black robes, judicial authority emanating from his very being.

The first order of business is AE149, which the defense filed on Friday in response to last week’s revelation in the 9/11 case that someone outside the commission system had the ability to interrupt the commission’s video and audio feed. The prosecution has not yet responded to this motion, and Judge Pohl asks the prosecution whether it is prepared to argue the motion anyway. Trial counsel Anthony Mattivi says the government will want to be heard on this matter.

Defense attorney Lt. Cdr. Stephen Reyes takes the podium and argues that until we find out the extent of monitoring and listening by the third party---which everyone understands to be the CIA---confidential communications with his client is impossible, and the proceedings should not continue. We are surrounded by microphones, he says, and we don’t know what organization is doing the listening. If it is the CIA, it is the same organization that detained and tortured al-Nashiri. It is the same organization that lied to a federal court about destroying the interrogation tapes.

Judge Pohl says it doesn’t make any difference whether an outside party is listening to the official proceedings, since the proceedings are public and being broadcast to lots of third parties. It’s a different matter if they are listening to attorney-client communications. But what, he asks, is the evidence of that? Reyes says there are a bunch of microphones around the courtroom that have the ability to home in on and listen to what is happening at counsel table. Last week, he says, we found out that there is a man behind the curtain. We have an ethical obligation not to ignore that man behind the curtain. The censorship last week---of which, he pointedly notes, Judge Pohl was previously unaware---raises the specter of third party monitoring of the proceedings, and we have to find out the extent of that monitoring.

Judge Pohl, over Reyes’s objection, takes judicial notice of the fact that the statement that triggered the event last week was a statement of defense counsel from the podium, not at the defense table. Monitoring of official proceedings, he says, doesn’t suggest that there’s monitoring of statements outside of the proceedings themselves. What remedy do you want here, he asks? Reyes responds that he wants an individual to come in and testify about the extent of listening at counsel table and in the holding cells. Our remedy is to hold off on these proceedings until we feel comfortable that we understand the scope of what is happening. Judge Pohl notes that this is all based on speculation---no facts, and no evidence. Reyes and he disagree at some length about what last week’s incident suggests about listening in the courtroom. All we’re asking for, Reyes says, is an opportunity to ask these questions. If we do not get it, we will not be able to proceed effectively; we will not be able to talk to the client about any motion.

Mattivi responds that Reyes has raised three issues that need to be addressed. First, he argues, the defense is conflating the ability to interrupt the feed from the courtroom with the monitoring of defense communications. There has been no example of the feed being interrupted in this case, he argues, though that did happen in a separate case. But we have always kept these two cases separate, he argues, and we should do so here. Judge Pohl asks whether the third party’s ability to cut the feed been interrupted in this case, as well as in the 9/11 case, and Mattivi says that his understanding is that it has. Second, Mattivi says, there is no evidence of recording or monitoring of defense communications, and the defense is trying to shift the burden of proof in this motion to the prosecution. The defense has offered no factual representation whatsoever to support this motion yet wants us to prove that something didn’t happen.

Third, despite the fact that we don’t have the burden, Mattivi argues, we came a day early and ran this to ground. And we asked people whether the defense had talked to them, and they said no. Judge Pohl asks what sort of people he talked to, and Mattivi says he spoke to the technical people who run the courtroom. Mattivi says he was able to find no evidence of monitoring. He asks that Judge Pohl summarily deny the motion and let the hearing proceed.

Reyes responds that Mattivi’s statement shows there are serious unanswered questions, but Judge Pohl wants to talk about the burden of proof. He and Reyes get into an extended exchange about what last week’s events really indicate---but they are really going around in circles. Judge Pohl, with Mattivi, clearly believes that the fact of monitoring the official feed---and having the ability to cut it off---suggests nothing about eavesdropping on defense communications. Reyes, by contrast, considers last week’s revelation as establishing monitoring and requiring an investigation into the extent of that monitoring---and considers the defense impaired until that investigation takes place.

In a quick response, Mattivi makes four claims. The defense has an obligation to put forth at least a modicum of information in support of its motion. While we don’t have the burden, he says, we did an investigation and eavesdropping is not happening. The mute buttons on the microphones actually work. And the allegation that the government is hiding the hand of third party agency from the court is silly. The rules of the military commission trial judiciary actually contemplate intelligence community involvement by creating a position to manage the relationship with intelligence components.

Reyes then quickly reiterates his points and Judge Pohl rules.

Judge Pohl says he assumes without ruling that the facts proffered by the defense are true. The motion to abate the proceedings, however, is denied because no facts proffered even suggest a threat to defense communications. The incident of last week, he rules, had nothing to do with attorney-client communications. Yes, there microphones in the courtroom and the ability to eavesdrop, but that does not mean eavesdropping is happening. That said, Judge Pohl says, he understands the defense’s concerns, and he directs the government to cooperate with reasonable discovery requests on this issue.

He is ready to move on to AE99 and AE140.

Reyes, however, is not. He requests a recess to discuss the matter with trial counsel---and to seek guidance from advisory counsel on the ethical implications of proceeding with the case.

Judge Pohl is incredulous. Are you saying you need a recess to decide whether you can sua sponte abate the proceedings when I have just denied your motion to abate, he asks? Reyes says he is just asking for a moment to seek advice on the proper course. Can’t you figure that out yourself, Judge Pohl asks? You are an experienced lawyer, and you have learned counsel. It’s your job to be able to adjust to rulings in court. Reyes says he needs to consult with ethics counsel. We see a tremendous ethical issue here, he says, and there’s the possibility of bar discipline if we step wrong.

Judge Pohl is clearly angry, but he says he will give Reyes some time. How much time do you need? Reyes asks for a recess until after lunch---1:00 pm?

Now Judge Pohl is really angry, and the press corp at Fort Meade is egging him on---shouting at the screen for him to turn Reyes down. Nobody relishes an additional three hours with nothing to do at Smallwood Hall, much though this place has become all of our home away from home.

But to groans from the press, Judge Pohl gives Reyes his three hours---with a bit of a lecture. This is a one-time deal, he says. It’s a very unusual request, and it’s not going to be routine practice in my court that when you lose a motion you get a recess to regroup. You have to be prepared for when rulings go your way and when they don’t.

And with that, we’re in recess.