2-12-2013By Daphne Eviatar
Law and Security Program
This is a crosspost from the Huffington Post.
Testimony from the special 9/11 courtroom at Guantanamo Bay this morning confirmed what defense lawyers have been complaining about for weeks now: The 32 microphones in the courtroom are sensitive enough to pick up lawyers’ conversations with their clients or co-counsel, even if they’ve muted their own mics. What’s more, both the court reporter and the government officials monitoring the proceedings for classified information receive that extrasensitive feed. Defense lawyers claim that intrudes on what are supposed to be confidential attorney-client communications.
Pre-trial hearings are underway this week at Guantanamo Bay in the case of the five men alleged to have masterminded the September 11, 2001 terrorist attacks. The case is proceeding at a snail’s pace due to a host of procedural uncertainties arising in connection with the military commissions system, created after the 9/11 attacks, and the high-security courtroom built specifically to try this case. Neither the lawyers nor the judge is familiar with much of its technology.
On Monday, the government’s lead prosecutor, General Mark Martins, repeatedly objected to defense lawyers’ summarizing the expected testimony about that technology in court today. But the military commission’s courtroom technology program manager confirmed on Tuesday what defense lawyer James Connell had claimed: that the “ungated” audio feed picks up a wide range of chatter in the courtroom even from individuals not speaking into a microphone.
“The ungated pathway will pick up even a low tone” of voice, Maurice Elkins, the courtroom technology manager, testified in court this morning. “Maybe not clearly, but it will pick it up.”
So even if a lawyer has muted the microphone directly in front of him so as to speak confidentially to his client or another defense attorney, a nearby microphone (there are three on each counsel table) can capture what is said. That feed then goes to the court reporter, who records it, and to an unidentified number of unnamed “Original Classification Authorities” — known as OCAs — who are government officials listening to the court proceedings from an unidentified location. All identifying information about those OCAs has been deemed classified.
Under questioning from military commission Judge James Pohl, who quickly grew impatient with defense counsel’s questioning of the witness this morning, Elkins confirmed that all of the audio feed could be “gated” so no one would receive the extra-sensitive feed. But that has not been done.
Until yesterday, all microphones were set so they were always active, Elkins explained, unless someone pressed a button to mute the mic while speaking. Pursuant to Judge Pohl’s orders after defense counsel expressed concerns, that was changed. Now, all microphones are set to mute, and must be activated by the lawyer speaking into it.
Still, the court reporter retains a recording of the most sensitive audio feed from all 32 microphones that were constantly active until yesterday, and may have picked up confidential attorney-client communications. And the OCA had the ability to listen in to that feed, and all of the sound it picked up.
Captain Thomas Welsh, the Staff Judge Advocate who advises the Guantanamo base commander on policies governing detainee visits with their attorneys, is expected to testify about the ability of the government to eavesdrop during out-of-court attorney-client meetings this afternoon.