Gitmo censor controversy spawns fears of additional surveillance

Defense attorneys for accused 9/11 co-conspirators Khalid Sheikh Mohammad, Walid Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Ahmed al Hasawai sought to suspend the tribunal's proceedings on Thursday.  

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David Nevin, the lead counsel for Mohammed's defense team, requested Army Judge Col. James Pohl approve the delay during a pretrial hearing at the Expeditionary Legal Center at Camp Liberty in Guantanamo. 

The defense teams requested the suspension to allow court officials time to investigate allegations of suspected surveillance efforts by the government to listen in on confidential communications between themselves and their clients. 

"After this week, the paranoia has been kicked up a notch," Defense attorney James Connell told reporters after Thursday's pretrial hearing. 

Cmdr. Walter Ruiz, who is leading the defense for al Hasawai, said the spectre of possible government surveillance of his client's conversations was indicative of the "illusion of justice" the tribunal system was attempting to portray. 

For his part, Nevin said his team had "reason to believe we have been listened in on," by unknown government entities during various meetings with his client, that would fall under attorney-client privilege. 

While Nevin was unable to provide specifics, due to sensitive nature of the claims, he told reporters the allegations of surveillance made by the defense teams "go beyond speculation" and were characteristic of "the way the world works" in Guantanamo. 

Emphazising his point, Nevin questioned why members of the defense teams were required to notify the government whether their meetings would be conducted in Arabic or English. 

"This has been a problem with every [terrorism] case that has been litigated [here]," he said. "Whether the Constitution applies at Guantanamo." 

Attorney James Harrington, head of Binalshibh's, said there was always a suspicion among the defense teams over whether U.S. government officials were monitoring attorney-client communications since the beginning of the tribunal's hearings.  

But the surprise termination of the closed-circuit feed during this week's tribunal hearings supposedly confirmed the defense team's mistrust on the confidentiality of those talks, according to Harrington. 

"It's there," he said. "They are watching. They are listening." 

The live audio and video feed of Monday's tribunal hearing was blacked out for over two minutes, due to the supposed disclosure of classified information by Nevin during the proceedings. 

After the feed was restored on Monday, Pohl openly questioned the decision to cut it and — in a surprising move — reiterated what Nevin discussed inside the courtroom during the disruption. 

On Tuesday, U.S. prosecutors disclosed that the real-time transmission of the tribunal’s proceedings collected by the court’s official reporter is tracked by a government agency known in military legal terms as an “Original Classifying Authority,” or OCA. 

That agency or agencies — which is likely either a military or intelligence body — can determine whether a particular document, statement or conversation is classified at any time. It can then censor the proceedings of the tribunal. 

Until Tuesday, it was understood that the only people who were able to cut off the tribunal’s closed-circuit feed was Pohl and his court security officer. 

On Thursday, Pohl officially banned outside military or intelligence agencies from monitoring or, in some cases, blacking out live-video feeds of the tribunal hearings. 

Monday's incident "is the last time" an OCA representative will be able to monitor or intentionally terminate the tribunal's live-feed, the judge told the court. 

Brig. Gen. Mark Martins, the U.S. chief prosecutor, told reporters that court officials were in the midst of removing all outside access to the tribunal's live feed. 

"That courtroom . . . is his domain," Martins said, referring to Pohl, adding that Thursday's decision made that "pretty clear." 

That said, the one-star general noted that Pohl and his staff will receive "assistance from [government] experts" on determining when the courtroom feed should be blacked out due to classification reasons. 

But the complexity and magnitude of the case against the 9/11 co-conspirators has lawyers on both sides struggling between maintaining a transparent tribunal process while maintaining national security requirements. 

"There really are secrets that we have to protect," Martins said regarding the now-terminated OCA role in monitoring and controlling the tribunal's closed circuit feed. 

But Ruiz noted that in light of this week's events, the balance has shifted to a point where its now unclear whether his client and the four other defendants can receive a fair trial. 

"I don't know if we can ever be sure" about the confidentiality of attorney-client communications, Ruiz said.