2-6-2013By Adam Jacobson
Law and Security Program
I was at Fort Meade this week, monitoring the continuing Guantanamo military commission trial of Abd al-Rahim al-Nashiri, who is charged with plotting the 2000 bombing of the USS Cole in Yemen, which caused the death of 17 US sailors and wounded 39 more. The session had been underway for less than an hour when it was recessed for three hours so that the defense attorneys could get guidance as to whether they were ethically allowed to continue doing their job.
The issue that led to this bizarre turn was the surprise censorship at Gitmo by a third party at the pretrial hearing of alleged 9/11 plotters, which my colleague Daphne Eviatar covered here. When the defense attorneys raised questions about supposedly classified information, white noise blasted, the screen monitors went blank, and even Judge Pohl (the judge for al-Nashiri’s trial also) didn’t know what was happening. Not exactly confidence building.
In the al-Nashiri trial, the defense submitted a motion to suspend the proceedings until they could be sure that third parties were not also eavesdropping on confidential communications with their client or between the attorneys themselves, not a far-fetched proposition given the events of the week before. The defense asked that the judge compel the third party to come and testify about the extent of its monitoring.
When Judge Pohl denied the motion on grounds that the defense didn’t present any evidence for their accusations, the defense requested a recess so that they could check with their bar association as to whether they were ethically allowed to continue when they could not guarantee attorney-client confidentiality to their client. The judge begrudgingly granted the request, and so everyone got a long lunch. This is the standard pace of military tribunals.
After lunch, the defense reported that, in fact, third parties could listen in on confidential attorney client communications almost everywhere if they wanted to. They learned that the courtroom at Guantanamo is like one giant listening device, and even when microphones nearby are muted, other microphones can still pick up whispered conversations between attorneys or between attorneys and their client. The defense also found that their confidential conversations possibly could be monitored in the interview rooms on base. Only al-Nashiri’s holding cell, it seems, is sure to be safe from eavesdropping, as there are no listening devices installed in the cell.
Judge Pohl proposed that the court remove all the microphones from the defense tables, and ordered the Gitmo authorities to investigate the interview rooms. In the meantime, defense attorneys will have to huddle in a corner of the courtroom to maintain attorney-attorney confidentiality. A way to communicate with their client in confidence in the courtroom was not discussed. Some claim that the military commissions are just, but lawyers huddling in the corner just to be sure that they aren’t being overheard belies that idea.
The government argued a motion to have the judge convene a medical board to evaluate whether or not al-Nashiri is mentally fit to stand trial (he was tortured at a CIA black site before being taken to Guantanamo, and the defense says he suffers from PTSD). The judge granted the motion. The judge also ruled that since the board’s decision ultimately may determine how the trial moves forward, further proceedings can’t continue until the board has finalized their examination and decision. And so the trial will be delayed yet again, probably until April.
During the lunch recess, one of the people working the live feed at Fort Meade told me about seeing the USS Cole recently. More than 12 years after the bombing, some of the damage to the ship remained unrepaired, and was only covered up with panels – a façade covering the explosion-warped walls. This seems like a fitting metaphor for the trials at Guantanamo. The government keeps trying to rework the military tribunals into a fair system of justice, but it remains just a façade.