Feb. 11 (Bloomberg) -- Lawyers for some of the accused plotters of the Sept. 11, 2001, terrorist attacks say they remain convinced that the government is eavesdropping on their private conversations with their clients and will push to change the audio system used in the military courtroom.
The question of who may be listening in on private talks between Khalid Sheikh Mohammed and four other accused terrorist plotters and their attorneys, and whether anything should be done to prevent it, promises to dominate a week of preliminary hearings that begin today at the U.S. naval base in Guantanamo Bay, Cuba.
The first issue before the military judge will be an emergency motion by the defense seeking to bar the military from monitoring the lawyers’ conversations with the accused. Prosecutors, who are seeking the death penalty in the case, have denied any eavesdropping.
“No entity of the United States government is listening, monitoring or recording communications between the five accused and their counsel at any location,” prosecutors wrote in a legal brief made public over the weekend.
Defense lawyers said at a press conference last night at Guantanamo that they are convinced eavesdropping is going on, at least when they try to confer with their clients privately while in the courtroom.
James Connell, an attorney for Mohammed’s nephew, Ali Abdul Aziz Ali, said the sensitive audio system used in the courtroom picks up private conversations, even at low decibel levels.
While that audio feed isn’t transmitted to court visitors, who observe the proceedings from a separate gallery, or to remote sites, Connell said it is available to the “original classification authority.” That’s an unidentified government official who is charged with monitoring the proceedings and alerting the court to any classified information that the government deems should be censored.
Connell said he will push for a change in the software used for the audio system so that only conversations loud enough that they are intended to be aired publicly can reach the government authority for monitoring.
“There has to be a safe space for defendants and their attorneys to have a privileged conversation in the courtroom,” Connell said.
Navy Commander Walter Ruiz, who represents Mustafa al Hawsawi, a Saudi who allegedly helped finance the Sept. 11 hijackers, said he shares the concern about eavesdropping.
“We don’t know for what purpose that capability may be used, or could be used,” Ruiz told reporters. “How far does it go and how do we prove it?”
Army Brigadier General Mark Martins, the chief prosecutor, denied any eavesdropping, telling reporters last night that “any prosecutor is actively supposed to avoid” listening to attorney-client conversations.
Defense lawyers’ suspicions about eavesdropping were triggered after the courtroom audio feed to observers and reporters was cut off without the judge’s permission during legal arguments at the last set of hearings, which ended Jan. 31.
The feed is delayed 40 seconds so that the judge or his court security officer can interrupt the transmission if sensitive matters are raised.
Prosecutors disclosed that the original classification authority, or OCA, also could block testimony. Defense lawyers said they were surprised and troubled that a secret outside agency had that power.
The military judge, Army Colonel James Pohl, on Jan. 29 ordered the OCA to confine itself to providing “guidance” to the court security officer as to whether “classified information has been disclosed.”
In the brief made public by the military, prosecutors told Pohl that “there is absolutely no prohibition, nor is it in any way inconsistent with the protections for classified information for an OCA to review the closed circuit audio-video transmission to conduct a classification review.”
They didn’t identify which government agency the OCA represents or where the person is located. Martins declined repeatedly yesterday to say more.
“A brief interruption of the audio and video transmission in this case prompted by the OCA, or any other party for that matter, does not amount to a per se violation of the attorney-client privilege,” prosecutors said. “What third parties observe from a remote location far removed from the courtroom is irrelevant and has no bearing on these proceedings.”
While prosecutors said in their brief that the military had the ability to listen in on meetings defense lawyers hold with their clients in a Guantanamo Bay facility known as “Echo 2,” they said “security personnel have never activated the audio feature during defense visits.”
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 case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).