1-30-2013By Daphne Eviatar
Law and Security Program
A military commission judge’s attempt to explain Tuesday morning why the 9/11 pre-trial hearing being held at Guantanamo Bay was briefly blacked out from observers on Monday has only caused more confusion.
Beginning the hearing of the five alleged September 11 co-conspirators, Judge James Pohl said a “security officer” is in charge of cutting off the feed when he believes something classified is being discussed. The judge didn’t say who or where this security officer is or on what basis he makes his decision that the matter is classified. He didn’t even clarify whether there is just one security officer in the courtroom, or others receiving the real-time audio feed elsewhere with the ability to press the censor button.
Judge Pohl explained that whoever it was should not have cut off the feed because Khalid Sheikh Mohammed’s attorney, David Nevin, was merely talking about his motion to obtain evidence of secret CIA detention facilities, commonly known as “black sites,” which has been filed in court and posted on the public docket. Obviously a reference to it can’t now be considered classified.
Ultimately, Pohl said, he’s the one in charge of deciding when to “close the courtroom” — that is, when to cut off the audio feed that lets observers hear the proceedings. Still, he acknowledged that there are several audio feeds going to several different places, including one real-time feed that goes straight to the court reporter. And Judge Pohl said he’s not sure who hears that feed.
The judge was candid about his own confusion: “We’re relying on what we think the technology is, not knowing what it is.”
That’s not making the defense lawyers feel any better about it. Defense attorney David Nevin stood up to say that it’s important that he be able to turn off his microphone so no one — whether the court reporter or some unnamed government security officer somewhere — so he can have confidential conversations with his client. As KSM’s attorney, he’s ethically required to maintain his client’s confidentiality.
Defense lawyer Cheryl Bormann echoed those concerns. Is the audio feed to the court reporter recording her conversations with her client, Walid bin Attash? If so, it’s a violation of court rules as well as her ethical obligations.
Pohl, who’s presiding over the 9/11 case but didn’t invent the elaborate censorship technology created to limit the public’s access to it, agreed with the defense lawyers’ concerns. He just didn’t know how to answer any of their questions.
He promised to allow the lawyers to call witnesses later to explain to the court how the courtroom technology works.
UPDATE: Apparently it was the mention of the word “secret” that triggered someone, somewhere (we still don’t know who or where) to press the censor button that blacked out the audio and video feed on Monday.
David Nevin, Khalid Sheikh Mohammed’s lawyer, was talking about his request for information about detention sites where his client was held. Because even the government’s response to that request is classified, Nevin expressed concern that “some portion of this will turn out to be closed or secret.”
That’s when the static started.
All Nevin actually then said, according to an unofficial transcript given to reporters today, was “on behalf of Mr. Mohammad, I object to proceedings being closed, because they deal with preservation of evidence of a detention facility. It’s a critical matter to Mr. Mohammad. It’s central to the case as far as he’s concerned.”
Given how much of this case the government claims must be kept secret, if the trigger-happy security officer(s) in charge of the censor button – whoever or wherever they may be – continue to censor the word “secret” every time it’s uttered, we’re going to be in for a heavily redacted, protracted and ultimately super-confusing next few years of this case.