The week of Guantanamo hearings for a quintet of al-Qaeda suspects accused in the 9/11 attacks concluded with an emergency motion to suspend proceedings amid questions of who’s listening into defense conversations.
Professed 9/11 mastermind Khalid Sheikh Mohammed and his alleged co-conspirators — Walid bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali, and Mustafa Ahmed al-Hawsawi — only showed up in court one day this week, with Mohammed sporting a flame-orange beard and, unlike previous appearances, having little to say.
But the focal points of the courtroom this week weren’t these notorious men facing the death penalty in the murder of 2,976 on U.S. soil. It was the civilian defense attorneys and an unseen person with a finger on the censor button who created the headlines.
On Monday, the audio feed of the courtroom proceedings — both observers at Gitmo and in the satellite viewing room are partitioned off in case classified information is discussed in open court — cut out for about a minute at the discretion of the “original classification authority,” without involvement from the commission or the court security officer.
Judge James Pohl reviewed the OCA’s reason for cutting the feed and ruled there was no justification to keep the information discussed from the public. The chopped portion consisted of one of Mohammed’s lawyers moving to request that secret CIA black sites where his client was interrogated be kept intact to preserve any evidence.
“This is the last time that an OCA or any other third party will be permitted to unilaterally decide if the broadcast should be suspended,” Pohl said Thursday. “The OCA, any OCA does not work for the commission and therefore has no independent decision-making authority on how these proceedings are to be conducted.” That anonymous censor, of course, is suspected to be the CIA.
“The court security officer works for the commission. He is trained in identifying classified materials and is authorized to initiate the temporary suspension of the broadcast of the proceedings if, in his judgment, such action is necessary. He then will consult with the judge. The judge and only the judge will then decide on the appropriate action,” continued Pohl, who was visibly irritated by the censoring.
“Accordingly, I order the government to disconnect any ability for any third party to suspend the broadcast of these proceedings and also no third party to unilaterally suspend the broadcast of these proceedings.”
Fresh off a day of lobbying for 48-hour visits to understand their clients’ surroundings better, Mohammed’s lead defense counsel filed an emergency motion “to abate the proceedings and to not take further action in the case until we get to the bottom of not only the question of who’s, what the capabilities are for listening in, who is listening on communications at counsel table, both with respect to communications with our client and communications among counsel and between counsel, but also in other settings here at Guantanamo Bay, and specifically referring to the locations where we meet with our client.”
Attorney David Nevin said that concern extended to off-the-record conversations in the courtroom when parties weren’t addressing the court.
“My request is that we just put the proceedings on hold until we get to the bottom of this question,” he said. “…That is why we characterized it as an emergency, because we realized if we can’t go forward, we can’t go forward.”
Given the nature of the motion, Pohl told Nevin that the defendants who made clear there’s no motivating factor to come to court will have to be in the courtroom when the next week of pretrial hearings opens on Feb. 11.
The media viewing areas, both at Guantanamo Bay and the satellite location at Fort Meade, Md., are actually a mix of reporters and observers for human-rights groups that have been critical both with the long detention of the terrorists and the enhanced interrogation techniques used on the accused.
As 9/11 families gather at Gitmo and other viewing rooms at a handful of bases for each plodding step forward in the proceedings, opponents of the tribunal process decry the hearings as show trials that won’t see the al-Qaeda operatives freed even if acquitted.