Terrorism Trials & Investigations

Statement by the Chief Prosecutor Regarding Upcoming Hearings in the 9/11 Case

By Wells Bennett
Sunday, February 10, 2013, 10:12 PM

You can find a copy here.  An excerpt from the statement by Chief Prosecutor Brig. Gen. Mark Martins:

Alleged Intrusion Into Attorney-Client Discussions in the Courtroom and Elsewhere 

On the 28th of January, the audio and visual transmission from the courtroom was briefly interrupted.  Many of you were viewing the proceedings at that time.  I am encouraged by the fact that some of you did more than just follow what was literally a bright and shiny object—the red flashing light which signaled to all that the transmission had been cut.  The media accounts that ensued dutifully reported the cutting of the feed, the judge’s surprise, the prompt release of the 105 words unheard by the public due to the interruption, and the judge’s clear ruling that he and only he would henceforth approve any interruptions of the transmission.  But some of the media coverage also soon began to provide additional context.

It became more widely known that the Judge himself had issued standing Rules of Court directing his Court Security Officer to serve as primary security liaison between the trial judiciary and intelligence entities on all security matters, while also observing the prohibition on ex parte communications except as authorized by the Military Commissions Act or the Manual for Military Commissions.   More people came to appreciate that in a publicly available executive order on protecting national security information, the President has delegated “original classification authority” to responsible and accountable officials in the executive branch who are trained in proper classification and declassification.  Despite the concerns initially raised, the public came to understand that it is a prudent way both to protect sources and methods and to maximize openness of the proceedings if such officials are immediately available to provide the Judge and the Court Security Officer a classification review of the real-time transmission to enable operation of the 40-second delay.

Moreover, it became more widely known that the military judge is the sole authority in law on any closure of commission proceedings to the public (see Rule for Military Commission 806), that he is the presiding officer of the military commission (see Military Commissions Act at 10 U.S.C. § 948j), and that he is thus an officer of the United States who like federal judges and all other officers has a non-delegable and corresponding responsibility to safeguard the classified information that protects the public from harm. See 10 U.S.C. § 948p-l (a).  

Some have speculated that this public conversation about an aspect of these trial proceedings that had previously gone unnoticed was a regrettable distraction from the pursuit of justice.  I respectfully disagree.  Although the vast majority of citizens support the protection of genuine sources and methods by which intelligence is gathered on terrorist groups to prevent future attacks, secrecy must always be accountable within a free and open society and must always be subject to checks and balances within a democratically elected government.  These pre-trial proceedings reflect such checks and balances, and their openness and sharply adversarial nature have ensured that we would go no further until concerns over attorney-client confidentiality raised by defense counsel following the interruption could be allayed with additional scrutiny and information.

Today and tomorrow, you can review the results of the additional scrutiny directed by the judge, as well as the information gathered through the discovery and interviews resulting from the Defense Emergency Motion to Abate (Appellate Exhibit 133).   I urge you to please take some time with the declarations attached to the Government Response Brief to that motion.  My staff and I spent a full week diligently running every rumor to ground, and I can say unequivocally that no entity of the United States Government is listening to, monitoring, or recording communications between the five accused and their counsel at any location.  If, due to forgetfulness of the warnings prominently posted near each courtroom microphone, inadvertent utterances by counsel or accused into unmuted mikes are overheard by court reporters, such communications are fully protected from disclosure to the Prosecution, which is in any case ethically bound to actively avoid contact with such utterances.

The attorney-client privilege is fundamental to the effective assistance of counsel and to our system of justice.  Any suggestion that privileged communications might be infringed is taken very seriously.  As the Judge pointed out during hearings last week in another case, however, the viewing and even interruption of a transmission by an OCA says nothing in itself about the capability or existence of audio monitoring of attorney- client discussions.  And now, in an abundance of caution to reassure all parties, we have done our best to prove a negative.