Case Coverage: Al Nashiri Case

2/4 Al-Nashiri Hearing #2: More Mics, More Monitoring

By Benjamin Wittes
Monday, February 4, 2013, 3:26 PM

It’s 1:00 pm and we’re back.

Addressing a defense claim from earlier, Judge Pohl makes clear for the record that he would never require defense attorneys to violate applicable rules of professional responsibility.  But, he stresses, the defense must have a factual basis for its claim; or, absent any evidence of a threat to attorney-client communications, a written opinion suggesting some sort of ethical problem.

Defense lawyer Richard Kammen rises and says he did some research into the relevant disciplinary rules in his home state of Indiana. And the response brought him to two conflicting places. First, he feels an obligation to get more information about potential monitoring. Second, and completely opposite, Indiana law seemed to suggest that he needs to withdraw from the case. He doesn’t want to go there. But at a minimum, Kammen needs to uncover more about who can hear what.

Judge Pohl cuts him off. Is there any—even a scintilla—of evidence that there’s been any monitoring of attorney-client communications? Yes, Kammen says. Some of it we learned during the recess.

The court asks him to explain.

With the help of the prosecution, the defense attorney says, we interviewed two individuals familiar with our courtroom's technology. And basically, the courtroom is a huge listening device. At each table there are three extraordinarily sensitive microphones. We ran a test, Kammen says, and someone back at the second table and whispering could be heard on microphones located far away. A second problem is that even when a microphone is muted, voices can still be detected by other microphones. What’s more, if defense lawyers screw up and client conversations get picked up, the overheard material is saved to disk for transcription purposes. Sure, the court reporter might ignore it, but the supposedly confidential stuff would still be on the disk. And unlike in other courts, the transcript here is owned by the prosecution.

Is there audio monitoring in the holding cells? Judge Pohl wants to know.  Kammen says that based on what he’s been told, there appears not to be. So the only two places we can have conversations that are not recordable, he figures, are the corner of the courtroom and the holding cells.

He brings up a related issue: Monitoring in JTF-GTMO meeting rooms. Up until last week, Kammen says, we understood that there were all sorts of recording capabilities, but we gave the system the benefit of the doubt. But after the 9/11 case's "hidden hand" episode, a lot of that benefit went away---and during a meeting with its client yesterday, the defense looked at the meeting room through different eyes. The investigation today gives the lawyer more pause. There are classification issues, he says, but we believe there is a significant possibility of monitoring capability in the meeting areas.

In short, the lawyer says, if the court wants to go ahead today, then the procedure will be unwieldy, given Kammen and company's need to ensure confidentiality.  The defense will be going to the courtroom's corner, and back and forth to the holding cell, quite a lot.

Judge Pohl clarifies. So you're concerned about the sensitivity of the microphones in court, but not concerned about monitoring in the holding cells; and you believe there is an issue with regard to the meeting rooms? Kammen agrees.

Mattivi expresses surprise at counsel's representations regarding the sensitivity of the microphones. This is the sixth session, he says, and almost every time I’ve moved away from the podium, I’ve been told I can’t be heard. He moves away as he talks to demonstrate the point.

Judge Pohl asks: why not just remove the microphones from the defense table? Mattivi does not commit but doesn’t reject the idea either. The question, the prosecutor says, is why this is the subject of an emergency motion to abate. Why not file a motion in the regular order?  That process is dirt simple, in Mattivi's opinion: They file a motion. We respond. We look into it.  (During this colloquy, defense lawyers are moving back and forth to the corner, in order to consult away from the microphones---which clearly irks Mattivi.)

For the court, the dispute comes down to hardware issues.  It thus should be easy to resolve. Mattivi is annoyed and asks for some time to check out options, which Judge Pohl gives him. Kammen, smelling movement, likes the idea of removing the microphones, and also suggests that the parties work to resolve any monitoring issues at the JTF facility. Judge Pohl asks Mattivi if the prosecution can help to arrange an understanding between the defense and the JTF staff.  And Mattivi, though irritated, agrees.

Judge Pohl says he wants to get through two motions this afternoon.  But he also says we might end a little early today, in order to give the parties a chance to resolve some issues related to monitoring.