Judge suspends Sept. 11 proceedings over charges of eavesdropping
By Richard A. Serrano | Los Angeles Times | Published: February 12, 2013
FT. MEADE, Md. — The military judge in the Sept. 11 conspiracy case abruptly granted a defense request to halt the proceedings until Tuesday after lawyers for the five men accused in the plot raised fresh complaints that government intelligence officials were spying on their confidential attorney-client discussions.
The judge, Army Col. James L. Pohl, also ordered three top prison officials at the U.S. naval base at Guantanamo Bay in Cuba to testify Tuesday before he rules whether the military trial, the only criminal case to arise out of the Sept. 11, 2001, attacks, should go forward.
The defense lawyers said government intelligence officials, known to them only as the "original classification authorities," have eavesdropped through microphones at defense counsel tables and planted microphones in smoke detectors in holding cells where lawyers confer with their clients. They also say prison guards routinely ask what language they will be speaking when they set up visits with their clients.
The government denied that any eavesdropping had occurred.
James G. Connell III, an attorney for Ammar al Baluchi, accused of being an Al Qaeda financier, told the judge he also had evidence that the main courtroom audio feed, which goes to the court reporter, is being tapped.
"And that is everything that happens in the courtroom, all the sound in the courtroom," he said Monday. "The whole courtroom except maybe its corners is set up as an audio field."
David Nevin, an attorney for Khalid Shaikh Mohammed, charged with masterminding the Sept. 11 attacks, said "some other government agency is listening, an intel operation of some kind," to their private conversations. Cheryl Bormann, an attorney for Walid bin Attash, suspected of being an Al Qaeda training camp steward, said there was "overwhelming circumstantial evidence" the government is spying on them.
"I've been practicing law for 25 years," she said, "and never have I been put in a position to ask whether I've been listened to."
The chief prosecutor, Army Brig. Gen. Mark Martins, issued a statement saying he and his staff have investigated the allegations.
"I can say unequivocally that no entity of the United States government is listening to, monitoring or recording communications between the five accused and their counsel at any location," he said. He said government audio-visual technicians could reprogram the courtroom microphones, which the judge approved.
"We want to make sure now that we get to the bottom of how they can have a confidential discussion with their clients," the prosecutor said.
The courtroom audio system was set up so unnamed intelligence officials could monitor for any classified information that might inadvertently be released during the pretrial hearings. Last month, one of the monitors suddenly killed the audio and video when he thought something had crossed into classified information.
Pohl was upset, especially because nothing of a classified nature was being discussed. He subsequently ruled that only he and his courtroom security officer could cut the audio-visual feed.
Neither the judge nor the prosecution has identified the outside monitors, however, or what agency they work for.
When the hearings resume, those to testify include Navy Capt. Thomas Welsh, the staff judge advocate at the prison; Army Col. John Bogdan, commander of the detention facility; and Maurice Elkins, a civilian who is the director of courtroom technology.
The other defendants are Ramzi Binalshib, who prosecutors say managed the Sept. 11 pilots cell, and Mustafa Ahmed Hawsawi, another man suspected of being an Al Qaeda financier. All five have pleaded not guilty.
The hearings are being simulcast at Ft. Meade, Md.