Unseen censor can black out broadcast of Guantánamo tribunal hearings

GUANTÁNAMO BAY, Cuba — Federal prosecutors for the first time on Tuesday acknowledged that outside military or intelligence agencies can censor closed-circuit broadcasts of hearings by the 9/11 military tribunal. 

Prosecutors said a second, 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. 

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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. 

The disclosure came a day after a censor unexpectedly turned off part of the Monday proceedings, during which a lawyer for 9/11 mastermind Khalid Sheikh Mohammed was discussing a motion. 

The censorship angered and appeared to surprise Army Judge Col. James Pohl, the presiding officer at the court, who demanded to know why tribunal officials blacked out the hearing. 

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

On Tuesday, Pohl announced that the OCA reviewed proceedings and had the ability to censor them. 

“OCA … reviews closed-circuit feed of the proceedings to conduct a classification review to ensure that classified information is not inadvertently disclosed,” Pohl said, reading from a statement provided by government prosecutors. 

It is unclear where the OCA representative is monitoring the trial from, and Pohl did not comment on a location. Pohl also did not give any information on what agency the OCA representative belongs to. 

Aside from tracking the proceedings in real time, the OCA representative has the authority to terminate audio and video feeds of the hearings held at the Expeditionary Legal Complex at Camp Liberty in Guantánamo, where reporters monitor the proceedings. 

That feed features a 40-second delay, allowing court security officers to black out the transmission if attorneys discuss classified or otherwise highly sensitive material. 

Until Tuesday, it was understood that the only people who were able to listen in to the tribunal’s proceedings in real time were Pohl, the defense and prosecution teams and the five accused co-conspirators. 

The revelation set off a wave of questions from members of the defense teams, who asked whether the OCA representative was able to listen in to the attorney-client conversations via the microphones positioned on the courtroom tables. 

David Nevin, chief defense counsel for Mohammed, sought assurances from Pohl and the prosecution team that “confidential communication” with Mohammed could be ensured, despite the OCA representative’s monitoring. 

“It’s important in terms of rendering effective assistance of counsel that there be someplace in this courtroom at counsel table where a confidential communication can take place, so it is not overheard by other persons,” Nevin said. 

In response, U.S. prosecutors said the microphones positioned at the defendants’ tables would not be able to pick up any discussion or any type of audio, once the mute button on the microphones had been pushed. 

Pohl expressed some uncertainty as to whether the court could guarantee the microphones would be secured, once that button was pushed. 

“I think maybe you and I are in the same position in that we relied on … what the [audio and video] technology is, as opposed to knowing what it [actually] is,” Pohl said. 

The judge had initially ordered the prosecution to call an expert witness during Tuesday’s hearing to explain the intricacies of the courtroom’s audio and video system. However, during the hearing, Pohl announced he had canceled that request.