Lawyers for Khalid Sheikh Mohammed and four other men accused of orchestrating the Sept. 11, 2001, terror attacks said they fear they and their clients have been targeted by a “shadowy” U.S. official for secret eavesdropping
The lawyers’ suspicions were triggered after a courtroom audio feed was briefly suspended during legal arguments on Jan. 28 without the judge’s permission. Until then, defense lawyers thought that only the judge could interrupt the sound transmission to observers outside the courtroom at the U.S. naval base in Guantanamo Bay, Cuba.
Prosecutors later told defense lawyers that a government official known as an original classification authority, or OCA, also controlled courtroom audio.
In court yesterday, Mohammed’s lawyer, David Nevin, made an emergency request to suspend proceedings at the military tribunal until the defense learns whether “someone” is listening to lawyer conversations among themselves and with their clients. Speaking to reporters after court, the lawyers said they wanted to know who the OCA was and what agency the official worked for, where the person was based, and whether that individual was monitoring communications outside of court.
“I myself was surprised like everyone else that there are these shadowy parties controlling what is heard,” Nevin told reporters. “The purpose of this motion is to learn whether and to what extent they’ve been eavesdropping.”
Yesterday’s disclosure of third-party courtroom monitoring became the central issue after three days of largely technical arguments over the scope of protective orders and other legal concerns. At the press conference, Loreen Seelitto, whose son Matthew worked at Cantor Fitzgerald LP in the World Trade Center, said she was frustrated with the pace of proceedings.
‘Try Your Case’
“Try your case on what the law is, and let’s get justice moving,” Seelitto, one of eight relatives of victims to make the trip to Cuba, said to the lawyers.
Mohammed and the four others are accused of plotting the attacks that used hijacked passenger airplanes to kill almost 3,000 people at the World Trade Center in Manhattan, the Pentagon in Virginia, and in Pennsylvania. They are charged with conspiring to finance, train and direct the 19 hijackers who seized the four planes, terrorism, hijacking aircraft, conspiracy, murder in violation of the laws of war and attacking civilians.
A trial is at least a year away. The men face the death penalty if convicted.
There is a 40-second delay of statements broadcast from the courtroom to ensure that classified information isn’t disclosed. When a cutoff of the audio is triggered, listeners outside the courtroom hear a static-like sound known as white-noise. Defense lawyers said they had believed only the judge and his chief security officer had control over the switch.
James Harrington, an attorney for Ramzi bin al Shibh, who is accused of helping finance the hijackers, said the defense has been trying to convince its clients to cooperate in the proceedings. Now, he said, it’s harder to answer their concerns that the government is “watching, they’re listening, to everything.”
None of the five chose to appear in court yesterday, which the judge, Army Colonel James Pohl, has said is within their rights.
After reviewing Nevin’s motion, Pohl said the issue would be the first to be addressed at the next round of hearings beginning Feb. 11.
Pohl said it was improper to interrupt the Jan. 28 transmission as Nevin was speaking about a pending motion relating to black-sites where detainees claim they were tortured. He ruled that only he has authority to suspend the feed.
“The only person who is authorized to close the courtroom is the judge,” he said.
At yesterday’s press conference, the lead prosecutor, Army Brigadier General Mark Martins, declined to identify the OCA. An OCA is typically a senior official appointed through executive branch order, he said.
“Any closure of proceedings from the public must meet the same strict criteria demanded in federal civilian criminal trials,” Martins said in a statement.
Also yesterday, Pohl ordered Bruce MacDonald, the civilian head of the military tribunal, to testify at the upcoming hearings on whether he was improperly swayed by presidents George W. Bush and Barack Obama and other U.S. officials in deciding to pursue the case through a military tribunal and to seek the death penalty, as defense lawyers claim in a dismissal request.
As convening authority, MacDonald, a retired U.S. Navy vice admiral, designates the charges on which the accused are tried, selects members of the jury that will eventually hear the case and has other powers.
Throughout the week, the defendants’ lawyers pressed what has become a recurring theme at Guantanamo Bay: that the military tribunals undermine their clients’ right to a fair trial and that the military’s actions interfere in the lawyer-client relationship.
Loreen Seelitto’s husband, also named Matthew, disagreed.
“If this weren’t a fair system, I don’t think you’d be standing here now, and your clients would be dead,” he said at the press conference to one defense lawyer.
The case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).