A pretrial hearing for five prisoners accused of plotting the
September 11 attacks has been halted so technicians can
tinker with courtroom microphones to prevent eavesdropping on
confidential attorney-client conversations.
The war crimes court at the Guantanamo Bay U.S. Naval Base
convened for a little over an hour and then recessed until
Tuesday to address defense lawyers' concerns that the
courtroom microphones are sensitive enough to pick up
conversations among themselves and with their clients.
"Under the rules of ethics you can't have communications if
you aren't confident that they're confidential," said David
Nevin, an attorney for the alleged mastermind of the hijacked
plane plot, Khalid Sheikh Mohammed.
Defense lawyers said they had recently learned that even when
their defense table microphones were turned off, other nearby
microphones picked up enough sound for stenographers to hear
their conversations and include them in the transcript.
Under trial rules, the prosecution is in charge of the
transcripts. While no defense table conversations have
appeared in the unofficial transcripts that are released to
the public, defense attorney Cheryl Bormann, who represents
defendant Walid bin Attash, said it was "incredibly
disturbing" that they potentially could become part of the
official record, which remains sealed.
The judge, Army Colonel James Pohl, halted the proceedings so
that technicians could change the microphones. Instead of
pushing a button to mute them, lawyers would have to push a
button to activate them. The compromise, agreed to by all
sides, was aimed at ensuring there are no live microphones
capable of picking up the private conversations.
The microphones are a small part of a bigger issue that has
stymied efforts to move forward in the case.
The defendants, who could face the death penalty if convicted
of crimes that include murdering 2,976 people, were held and
interrogated in secret CIA prisons for three or four years
before they were sent to Guantanamo in 2006. All have claimed
they were tortured.
Their lawyers want to know if the intelligence agencies are
listening in on supposedly confidential conversations not
only in the courtroom but also in the cells where they meet
with their clients.
Prosecutors insist they are not. "No entity of the United
States Government is listening, monitoring or recording
communications between the five accused and their counsel at
any location," they said in court documents dated Feb. 7.
The judge has acknowledged that national security agencies
are monitoring the hearings from outside the courtroom and
said that should not be surprising. Defense lawyers contend
that if those agents are hearing the same unfiltered audio
feed as the stenographers, then the same people who captured
and detained their clients could be listening in on defense
Witnesses are scheduled to provide additional information on
Tuesday about the high-tech courtroom audio system, which has
29 microphones, and about any listening capability in the
cells where lawyers meet with the defendants.