GUANTANAMO BAY, Cuba - Who else is monitoring the Guantanamo military commissions proceedings?
That's the key question that came up during the second half of pretrial hearings Monday afternoon at the military commissions tribunal for Khalid Sheikh Mohammed and four other prisoners accused of planning the 9/11 attacks.
At issue was who controls the use of a censor button inside the military courtroom which triggers a red flashing warning light and kills the audio feed to media and other observers watching the proceedings through closed-circuit television in the gallery.
The military judge and a court security officer can implement the censor button. It is supposed to be used to prevent classified information from being discussed in open court.
Apparently, another person is controlling another censor button somewhere and neither defense attorneys representing the suspects nor the judge seemed to know who was responsible for pressing it just moments after David Nevin, Mohammed's attorney, started to discuss an exhibit pertaining to his client's detention at a CIA-operated black-site prison.
As soon as Nevin said the word "secret," the warning light, which is silent, started to flash and the sound of white noise was fed through the audio feed. Moments later, the monitors inside the gallery went black. The outage lasted three minutes. Nevin then approached the bench and engaged in a discussion with the judge. (The courtroom is visible to members of the gallery but is separated by soundproof glass; the audio feed is delayed by 40 seconds).
When court reconvened, Army Col. James Pohl, the military judge, appeared to be upset.
"The 40-second delay was initiated, but not by me," Pohl said. "I'm curious as to why."
"Who is listening to this? Who is controlling these proceedings?" Nevin asked.
Pohl said the matters he and Nevin discussed during those three minutes in which the audio was cut off did not require use of the censor button, and since neither he nor the court security officer was responsible for triggering the disruption, he wanted to know who was.
"If some external body is turning the commission off under their own view of what things ought to be, with no reasonable explanation because I ... there is no classification on it, then we are going to have a little meeting about who turns that light on or off," Pohl said.
Nevin and attorneys representing the other 9/11 suspects said the defense would not be able to move forward with their case until they knew who was in control of that censor button and who else was monitoring the commissions.
"I thought it was the court security officer," said Navy Cmdr. Walter Ruiz, the military commissions attorney defending Mustafa al Hawsawi. "Who else is monitoring?"
Joanna Baltes, a Justice Department attorney representing the government on secrecy issues, seemed to know why Nevin's comments were censored and who was responsible for using the censor button. However, she would only discuss the issue in a closed session.
Later Monday evening, James Connell, defense attorney for Ammar al Baluchi, explained to reporters that the government would make an audio/visual technician available as a witness Tuesday to "address how the audio feeds work."
Connell said he did not know the identity of the technician. Connell added that he "thought there was one button and it was in control of the court security officer."
In response to a question from Truthout about the nature of his remarks prior to being censored, Nevin said he simply was trying to articulate that Mohammed has "the right to be present when issues related to his detention is discussed."
"Is that too much to ask?" Nevin said. "May he [Mohammed] be present to hear those discussions? You capture him in 2003 and torture him for three and a half years and he may be put to death."
The defense motion in question pertains to the preservation of the black-site prisons in Europe where Mohammed and his co-conspirators were detained - and tortured - before being transferred to Guantanamo in 2006.
Brig. Gen. Mark Martins, Guantanamo's chief prosecutor, also spoke with reporters to provide insight from the government as to what transpired regarding the use of the censor button.
He suggested that Pohl and the defense attorneys are well aware of the rules that are in place governing military commissions because the judge implemented them, and that the use of the censor button in particular is outlined in a December 8, 2011, document, "Military Commissions Rules of Court," describing a court security officer's responsibilities.
"I just want you to have that framework," Martins told reporters.
Still, Martins noted that an expert witness would be on hand Tuesday to discuss Pohl's own rules about court security.
Martins also said the portion of Nevin's comments that was censored would be restored to the hearing transcript "as soon as possible."
But by Tuesday morning, Pohl's tone dramatically changed. He said he thought about the issue overnight and decided against allowing an audio/visual expert to testify because he did not know who the "right" person would be to provide such testimony.
He noted, however, that "only the judge has the authority to close the courtroom," a comment that appeared to be directed at the individual who cut off the audio feed.
What was made clear on Tuesday is that Pohl seems to be unware about the technology used in his courtroom.
"I think you give me way too much credit as to what I know about what's happening in this courtroom from a technology standpoint," Pohl said in response to statements Martins made Tuesday morning, noting that Pohl authorized all of the courtroom audio and visual guidelines and the security measures in place pertaining to how the rules would be enforced.
So the issue about who controls the censor button during the proceedings remains unresolved. But Baltes, the Justice Department prosecutor, offered up a hint about the identity of the invisible hand. She said Tuesday morning the "original classification authority" reviews the military commissions audio feeds. The authority is likely the CIA as the issues Nevin began to discuss revolved around Mohammed's detention at CIA black site prisons.
The confusing turn of events during the first day of a week of pretrial hearings on a series of motions in the case underscored the chaotic nature of the military commissions.
Just two days earlier, Martins had urged members of the media who traveled to Guantanamo to cover the hearings to "withhold judgment" about the process. He impressed upon the media that he is a staunch advocate of "transparency" even though certain aspects of the case, such as the treatment the prisoners endured while in CIA custody, is shrouded in secrecy and is prohibited from being discussed in open court.
Phyllis Rodriguez, a White Plains, New York, resident whose son, Gregory, 31, died on 9/11 and is attending this week's hearings, however, has already made up her mind.
"I wish it were on US soil. I wish it were in federal court," she said, referring to the 9/11 trials.
Technical Legal Issues
Mohammed, whose beard was dyed red, and two other accused al-Qaeda terrorists, Walid bin Attash and Ramzi bin al Shibh, arrived in court Monday morning dressed in their traditional white tunics and outfitted as soldiers in camouflage jacket and vests. Their ankles were shackled when they were led into the courtroom by Guantanamo guards. Al Baluchi and Hawsawi did not wear camouflage attire, nor were their ankles shackled as they were led to their seats in the back of the courtroom.
The men were engaged in the proceedings throughout the day, thumbing through thick binders of motions and other legal material.
Highly technical legal issues dominated much of the morning session. For example, in order for the defense to receive classified information from the government, the attorneys have to sign a memorandum of understanding (MOU) promising to protect the information. But Connell took issue with some of the language in the proposed MOU, specifically over the use of the words "agree" and "agreeing."
"If we change 'agreeing to comply' to 'acknowledging a duty to comply,' I have no problem with it," Connell said about the MOU. "And if we change that 'I agree to be bound by the terms of the order' to 'I acknowledge that I am bound by terms of the order,' that is me acquiescing in the order of the court rather than me voluntarily agreeing to the terms of the order."
The government objected, and Pohl noted that the only way the defense will receive classified information is if they agree to the conditions set forth in the MOU and sign it.
Another matter that arose in the morning session and was resolved later in the afternoon pertained to the 9/11 defendants acknowledging verbally to Pohl that they understood they had the right to appear at the hearings and the right not to appear. Pohl demanded that the defendants state to him that they understood these rights, and if they refused to engage him, they would be forced to appear at the hearings.
Speaking to the accused individually, Pohl asked each of the men if he understood his rights and if he had any questions. All of the defendants said they understood their rights, but bin Attash added, "We don't have any motivating factors that would invite us to come to the court."
"We have been dealing with our attorneys for about a year and a half and we have not been able to build any trust with them," he said through an interpreter. "Our attorneys are bound and we are bound also. There are many things that the court could do to help us, help motivate us to attend the court, but there is nothing that would motivate us to come.
"Yes, I understand my rights very well. But I want you to understand the situation that we are in. The government does not want us to hear or understand. The prosecution does not want us to hear or understand or say anything. And they don't even want our attorneys to do anything."
One of bin Attash's attorneys, Cheryl Bormann, who dresses in a black abaya that covers her body when she appears in court, told Pohl she has not been able to send her client a letter since October 2011.
"In order for me to have a conversation with Mr. bin Attash, I have to make plane arrangements 14 days in advance to come down here for a week at a time so that I can have a short conversation with Mr. bin Attash," she said. "And then when I get down here, I'm not even permitted to bring in a list of things that I need to discuss with Mr. bin Attash or any draft motions that I might want to review with Mr. bin Attash, or, in fact, provide him with information I think might be relevant to the next commission proceeding. It has probably irretrievably affected my ability to communicate with Mr. bin Attash. And when I say 'my,' I mean everybody on the defense team for Mr. bin Attash. I know you don't understand this because you don't live my life."
During a hastily arranged news conference with reporters Monday evening, Bormann said she suspects her conversations with bin Attash are being recorded by the government when she meets with him to discuss the case.
"I have no confidence it is not," she said, adding that the military commissions has fallen short in living up to its motto, "Fairness, Transparency, Justice."