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Hints Of Progress After Investigation at Guantanamo Court

Feb 18, 2013
Originally published on February 18, 2013 7:52 am

The most dramatic moment of the week's hearing at Guantanamo Bay's military commissions was when a one-legged man stood up and began to berate the judge.

The one-legged man, Walid bin Attash, is one of the defendants in the high-profile Sept. 11 case, and his complaint was a throwback to a time when the tribunal first opened.

He was upset because guards had taken the opportunity while he was in court to ransack his cell and take letters from his attorney. It had happened to three of the other Sept. 11 defendants as well.

"For the sake of Allah," bin Attash shouted at the judge as his attorneys tried to calm him down. "This is important."

Snafus Continue

The military commission system at Guantanamo Bay has been fighting allegations of providing second-tier justice since its inception. The Supreme Court even weighed in on the problem, saying the courts established by the Bush administration to try terrorists at Guantanamo were unconstitutional. Congress then tried to reform the system, putting in place rules that made the commissions a hybrid of the military court-martial system and federal courts.

But snafus, like last week's searches, continue to occur. The letters guards seized last week were in what's called a "legal bin." It is a clear plastic tub with a top — like something you'd buy at the Container Store. The bins aren't supposed to be searched because of attorney-client privilege. The communication between attorneys and their clients is supposed to be sacrosanct.

"In this system, every time we turn around we're finding that they are seizing letters that I have written to him and reading them," bin Attash's lawyer, Cheryl Bormann, told reporters at Guantanamo Bay. "They are seizing letters that he has written to me and reading them. ... I cannot explain to you how disruptive it is."

Monitoring The Hearings

What's more, the search came at a particularly sensitive time. Just days earlier, it became clear that a third party – possibly the CIA – was monitoring the hearings and, defense attorneys said, potentially recording them. That came to light when a special button meant to cut off audio outside the courtroom when classified information is revealed was accidentally hit.

Two people are supposed to be at the controls of that censoring button: the judge, Judge James Pohl, and a special classification officer who sits at his elbow. When the censor kicked in, the two men looked at each other with surprise. Someone outside the courtroom had piped in white noise to block the information.

Officials would only say later that the "original classification authority" — in other words the organization that classified the information in the first place — was monitoring the hearings. That's not so surprising. What was new was that the authority seemed to have the power to cut the audio, and it sparked fresh concerns that a third party might also be listening to sidebars between attorneys and their clients.

Days later, defense attorneys discovered other microphones in small interview rooms where the attorneys talk to their clients. The microphones looked like smoke detectors installed on the ceiling.

The judge ordered the third party to stop using any technology that gave them the ability to censor anything said in the courtroom, and the defense filed an emergency motion to stop the proceedings until an investigation got to the bottom of it all.

A Perception Problem

It falls to the chief prosecutor of the commissions, Gen. Mark S. Martins, to run that investigation which, he said, creates a bit of a perception problem.

"Usually, I keep this kind of thing at arms length, for good reason," Martins told reporters. "You don't want the prosecution being the one delving into questions of attorney client privilege."

Even so, Martins launched the investigation immediately.

"We wanna know what happened. I wanted to know what happened," he said. "And at the end of a week of investigation I said unequivocally that listening, monitoring, recording is not happening, and I still believe that."

Martins said the interview rooms were dual use — and often the place for interviews related to legitimate law enforcement investigations. That's why, he said, the microphones are there.

Defense attorneys seemed to take his word on that point. In fact, no one was talking about a cover-up by the prosecution, which, given the history of the commissions, is a baby step toward progress. The defense said it didn't think the prosecution was getting illicit information from recordings either.

"We do not have any evidence of that," said James Harrington, who represents Ramzi bin al-Shibh, who is accused of training the Sept. 11 hijackers. "And I don't think any of us have made any accusations that they have been."

While the prosecution may not be involved, defense attorneys still have a raft of questions: including if some other part of the government, such as the CIA, might actually be listening in on conversations they have with their clients.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

RENEE MONTAGNE, HOST:

The military court at Guantanamo Bay set up to try accused terrorists has had to fight allegations that it provides second-tier justice. The Supreme Court found the commissions as established by the Bush administration unconstitutional. Congress tried to reform them, but there are still problems. A pretrial hearing in the September 11 terrorist case was suspended briefly last week to investigate allegations of eavesdropping.

NPR's Dina Temple-Raston explains.

DINA TEMPLE-RASTON, BYLINE: The most dramatic moment of the week's hearing: The one-legged man stood. The defendant, Walid bin Attash, got up to berate the judge. His attorney, Cheryl Bormann, explained what happened afterward.

CHERYL BORMANN: Well, I think it was fairly apparent that he was incredibly disturbed.

TEMPLE-RASTON: He was disturbed because while bin Attash, who is alleged to have chosen some of the 9/11 hijackers, was in the courtroom, guards had entered his cell and seized letters written by his attorney. It happened to three other defendants too. Those kinds of communications are kept in what's called a legal bin, a clear plastic tub with a top, like something you'd get at the container store.

The bins aren't supposed to be searched because of attorney/client privilege. For the sake of Allah, bin Attash shouted at the judge as his attorneys tried to calm him down, this is important. Again, his attorney, Cheryl Bormann.

BORMANN: In this system, every time we turn around, we're finding that they are seizing letters that I have written to him and reading them. They are seizing letters that he wrote to me and reading them. I cannot explain to you how disruptive it is.

TEMPLE-RASTON: The search came at a sensitive time. Just days earlier, it became clear that a third party, possibly the CIA, was monitoring the hearings and possibly recording them. That led to the discovery of other microphones, this time in small interview rooms where attorneys talk to their clients. The microphones look like smoke detectors and had been installed on the ceiling. Defense filed an emergency motion to stop the proceedings until an investigation got to the bottom of it all.

It falls to the chief prosecutor of the commissions, General Mark Martins, to run that investigation, which creates a bit of a perception problem.

GENERAL MARK MARTINS: Usually I keep this kind of thing at arm's length, for good reason. You don't want the prosecution being the one delving into questions of attorney/client privilege.

TEMPLE-RASTON: Still, Martins launched the investigation immediately.

MARTINS: We want to know what happened. I wanted to know what happened. And at the end of a week of investigation, I said unequivocally: listening, monitoring, recording is not happening, and I still believe that.

TEMPLE-RASTON: Martins says the interview rooms are also used for legitimate law enforcement investigations. And that's why the microphones are there.Defense attorneys believe him on that point. No one was talking about a cover-up by the prosecution, which for the military commissions is a baby step towards progress.

What's more, defense attorneys don't think the prosecution is getting illicit information from recordings.

JAMES HARRINGTON: No. We do not have any evidence of that.

TEMPLE-RASTON: James Harrington represents one of the 9/11 defendants.

HARRINGTON: And I don't think that any of us have made any accusations that they have been.

TEMPLE-RASTON: The prosecution may not be involved, but defense attorneys still have questions, including if some other part of the government, such as the CIA, might actually be listening in. Dina Temple-Raston, NPR News. Transcript provided by NPR, Copyright NPR.