FORT MEADE, Md. — The military judge in the Sept. 11 conspiracy case angrily ruled Thursday that government censors and intelligence officials can no longer shield the proceedings from public view and that he will decide when to cut off a live audio/video link in instances where classified information is discussed.
Judge James L. Pohl, an Army colonel, also is considering halting the entire case to investigate allegations from defense lawyers that the censors have been using technology to improperly eavesdrop and spy on their private conversations with their clients, in the courtroom and other parts of the detainee compound at the U.S. Naval Base on Guantanamo Bay, Cuba.
Navy Lt. Commander Walter Ruiz, attorney for Mustafa al Hawsawi, an alleged al-Qaida financier, said the government monitoring system is making a mockery of what was billed as an open and transparent military tribunal process.
“Who is the invisible hand?” Ruiz asked. “Who is pulling the strings? Who is the master of puppets?”
The eavesdropping allegations surfaced in an emergency defense request Thursday from the lead attorney for alleged Sept. 11 mastermind Khalid Shaikh Mohammed to temporarily “abate the proceedings” until the court can investigate the matter.
Judge Pohl promptly placed the issue at “the top of the list” of matters to be decided when pre-trial hearings re-open Feb. 11.
“The issues raised here need to be resolved before we do anything else,” the judge announced.
“The allegation really goes to the top of the list. It needs to be litigated first before we get to anything else.”
The motion by David Nevin, Mohammed’s lead civilian attorney, was sealed, but he said in press briefing after Thursday’s hearing that lawyers for all five defendants believe the government, and particularly the CIA, has been monitoring their private attorney-client conferences in and out of the courtroom.
He said, for instance, that when defense lawyers ask to speak to the defendants outside of court, the guard force first demands to know what language they will be using.
“Why do they need to know that?” he said. “This has been a problem with every case that has been litigated here at Guantanamo. And now I was surprised to find there were these shadowy third parties controlling the output from the courtroom too.”
But Army Brig. Gen. Mark Martins, the chief prosecutor, defended the military tribunals, and suggested that the simulcast link from the courtroom to Fort Meade and other sites to accommodate Sept. 11 families is not being compromised.
“Many officials continue to work hard to ensure that the public can meaningfully observe and make informed judgments about these proceedings,” he said, “while protecting our national security interests.”
As originally set up, the proceedings are broadcast with a 40-second delay supervised by the court security officer and a censors called the Original Classification Authorities, a group of government intelligence experts.
Whenever they believed classified information is being discussed, they were to push a button that shines a red light in the courtroom and notifies the judge the line has been cut.
On Monday, Nevin was discussing a non-classified issue when suddenly the light flashed and the audio and video went dead for three minutes. The defense complained, and Judge Pohl investigated the matter.