Judge James Pohl ruled Dr. Sondra Crosby has the right to examine al-Nashiri as she best sees fit, saying a professional appointed to do a certain task needs to have the leeway. “If she wanted to do it in a meadow that would not be within reason,” Pohl said, approving of an exam with guards outside the room and video but no audio feed.
It was a mixed bag, though, for the defense request to abate proceedings until it could be assured that no one was eavesdropping on their privileged conversations. The ruling on this was a trial run for professed 9/11 mastermind Khalid Sheikh Mohammed’s defense team next week, which filed the same motion after it was revealed last week that a “third-party,” presumably the CIA, had arbitrarily censored the courtroom feed to reporters.
Pohl ordered that censoring authority be taken away from any third party, but defense attorneys said the incident sparked concern about how private their private conversations really are.
“Recent events have revealed that there is a third party organization that has the ability to monitor these proceedings,” Navy Lt. Cmdr. Stephen Reyes said. “We do not know to what extent they are able to listen to our conversations.”
“We don’t know what organization is doing the listening. If it is the CIA… this is the same organization that detained and tortured al-Nashiri.”
“What is your evidence of listening to conversations?” Pohl grilled Reyes, saying the lawyer appeared to want a “motion to stop everything to investigate if I have a motion.” Drawing the conclusion that the third party was snooping on the defense because it cut the public feed during a portion it deemed to be sensitive material (the judge didn’t agree) was “apples and oranges,” Pohl said.
“I believe they’re actually identical, your honor,” Reyes said.
“Do you really think that in cases involving classified information stakeholders don’t take an interest in the proceedings?” Pohl asked.
Reyes wanted witnesses to come in and describe the technological setup for monitoring in the courtroom, holding cells, and conference room where lawyers meet. “They have been hiding their existence; only through some type of fluke or mistake is their existence known,” he said. “We have an ethical obligation to at least find out; we need somebody to actually look at this from an outside perspective.”
Stressing “the defense has a responsibility to do at least a modicum of investigation,” Mattivi noted a placard at each seat that advises lawyers to mute their microphones before engaging in sidebar conversations.
Denying their motion to abate proceedings, Pohl begrudgingly allowed an unusual three-hour recess for the defense to investigate their suspicions of being spied upon.
Upon returning, Kammen said they interviewed two people familiar with the court’s technology and discovered “the courtroom is a huge listening device.” Defense tests revealed whispering could be heard even with a muted microphone and the only safe place for privileged conversations was in the corner of the courtroom. The court reporter “made clear” he wasn’t allowed to answer questions about a third party listening in or not.
“Once we realize there’s a man behind the curtain we can’t just say, ‘Ignore the man behind the curtain,’” Reyes said.
There’s no trial date yet for al-Nashiri, whose case, going into this week, already consisted of 105 motions, more than 200,000 prosecution documents, and 14 months of discovery for the defense.
In his ruling on Iacopino, Pohl said the UN torture protocol author is a “necessary and relevant” addition to the defense case.
“Under the U.N. Convention Against Torture, the United States is obligated to prohibit torture, ensure prompt and impartial investigations and prosecute perpetrators,” Iacopino wrote in 2003. “Additionally, on countless occasions the State Department’s Country Report on Human Rights Practices has criticized governments that torture, in some cases the same practices the U.S. is now accused of committing in its ‘war on terrorism.’”
Stay tuned to PJM for ongoing coverage of the Guantanamo tribunals.