9/11 hearings bogged down on attorney-client privilege

By CAROL ROSENBERG | The Miami Herald | Published: February 11, 2013

GUANTANAMO BAY NAVY BASE, Cuba — Pre-trial hearings in the Sept. 11 case bogged down again Monday over the question of attorney-client confidentiality as defense lawyers sought to prove someone was eavesdropping on their conversations, and the chief prosecutor said they are not.

“I’ve been practicing law for 25 years,” veteran Chicago defense lawyer Cheryl Bormann lectured the judge, Army Col. James L. Pohl. “And never have I been put in the position where I have to ask the following: ‘Am I being listened in as I talk to my client?’’’

At issue is an emergency motion filed by defense lawyers who argue that unidentified intelligence agencies have channels to listen in on privileged attorney-client conversations in the case against alleged 9/11 mastermind Khalid Sheik Mohammed and four accused co-conspirators in the murder of nearly 3,000 people in the Sept. 11, 2001 attacks.

The chief prosecutor, Army Brig. Gen. Mark Martins, sought to neutralize the issue by pledging that there’s no eavesdropping.

“My staff and I spent a full week diligently running every rumor to ground,” he said in a statement Sunday night, “and 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.”

Bormann, defending Walid bin Attash, accused of training some the 9/11 hijackers, and Jay Connell, defending Mohammed’s nephew, Ammar al-Baluchi, disagreed with the general in court.

In one instance, Bormann said, a guard at the prison lockup assured her and bin Attash that “a smoke detector in a visiting cell was not a listening device.”

Defense investigation proved otherwise, she said.

“Guess what, judge? It’s a listening device!”

Throughout it all, Mohammed sat in court in a judicially approved hunting jacket of woodlands pattern camouflage following the proceedings and at times flipping through court papers. Relatives of those killed on 9/11, including a youngster, watched the proceedings from behind the court in a soundproof spectators gallery, hearing the audio 40 seconds later.

Mohammed’s death-penalty lawyer, David Nevin, won a delay in the hearing during a short 70-minute morning session that saw defense lawyers air grievances about how hard it is to work at Guantanamo because of its remote location and secrecy, and also the quality of the Navy’s cuisine.

Nevin, who’s based in Boise, Idaho, said he had just returned to Guantanamo on Saturday, and had not been given a chance to question the chief of the prison camps guard force, Army Col. John Bogdan, and chief lawyer, Navy Capt. Thomas Welsh, about the eavesdropping capability of the lockup where attorneys discuss the case with their clients.

Both Bogdan and Welsh will testify Tuesday morning, the judge announced.

James Harrington, the Buffalo, N.Y.-based, Pentagon-paid defender of alleged al-Qaida deputy Ramzi bin al-Shibh, said he was in the same predicament as Nevin.

The relationship between defense lawyers and the men who were brought to Guantanamo for trial from secret CIA prisons has been a source of repeated delay in the pretrial hearings, which are meant to decide legal issues and resolve discovery disputes before a military jury hears the case.

This latest round was sparked by the discovery two weeks ago that outside agents had a kill switch at their disposal, outside the courtroom, and could mute what the public is allowed to hear.

Pohl appeared angry and unaware of the “external body,” as he called the hidden-hand censor, until someone muted Nevin arguing an unclassified motion for a judicial order to protect what remains of the secret CIA prisons where Mohammed and the others were held overseas — reportedly in Poland, Romania and Afghanistan.

Pentagon officials won’t say who that person was, what agency that censor represented or whether the power to reach into court and cut the audio was on this 45-square-mile Navy base, or back on U.S. soil. The judge generically referred to the censor as the Original Classification Authority, or OCA, shorthand for a senior U.S. official or institution that has the power to declare information ``top secret.’’

In this Pentagon-approved sketch, alleged Sept. 11 mastermind Khalid Sheikh Mohammad is brought to court with a 4-man entourage walking beside him, Monday, February 11, 2013 in Guantanamo Bay, Cuba.


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