Just when you think it couldn't get much worse in the military commissions at Guantánamo, something happens to prove you wrong. It all began in late January when, during pretrial hearings in the case against five men accused in the 9/11 attacks, the audio feed -- which runs on a 40-second delay to prevent leaks of classified information -- was abruptly cut off. The media and observers, who sit behind a soundproof glass wall at the back of the court, noted the silence. But the cut surprised even the military judge, who believed he was the only one with authority to press the button and who did not consider the information being discussed at that moment classified.
The audio cutoff was initiated "not by me," the judge, Army Col. James Pohl, said angrily at the time, and "I'm curious as to why." He added, "If some external body is turning the commission off under their own view of what things ought to be ' then we are going to have a little meeting about who turns that light on or off."
It turns out the judge wasn't the only one with the ability to cut off the feed. Apparently, an entity known as the "original classification authority" had the power as well -- but no one, not even the judge, appeared to realize that up until then. Although no one will say officially, the classification authority is likely the Central Intelligence Agency, because most of the information subject to censorship in the case appears to relate to the torture and secret detention the defendants experienced at the hands of the CIA.
The incident prompted defense attorneys to ask: What else was being monitored that they didn't know about? And did that include attorney-client communications? Pohl thought the question important enough that he moved investigation of it by attorneys to the top of the hearing agenda, postponing all other pending issues.
The confidentiality of attorney-client communications is a fundamental element of U.S. justice. And people running the Guantánamo Bay facility had made repeated promises it was being protected. According to the Miami Herald, on March 6, 2012, the then-prison camp commander, Navy Rear Adm. David Woods, wrote to Southern Command, the military region that includes Guantánamo, that at the place where lawyers meet the accused "no microphones are installed to ensure privacy between the attorney and client is maintained."
Thus, it was extremely disturbing to learn, when the hearings continued last week, that listening devices disguised as smoke detectors had been installed in attorney-client meeting rooms.
Defense attorneys and their clients had long suspected they were being monitored. "My client raised the issue that we were being listened to," said Cheryl Bormann, defense attorney for Walid bin Attash, a Yemeni who is accused of trying to obtain a U.S. visa to receive pilot training and take part in the 9/11 attacks. "And I said to him, 'Of course not,' just like I say to every client I ever represented." But she wanted more assurance. One day, while meeting with her client, she pointed to a smoke detector in the room and asked the guard: "Mr. Guard, is that a listening device? And he said, 'Of course not.'"
In previewing testimony she was about to present, Bormann told the judge about the listening device. The next day, she called to the witness stand Navy Capt. Thomas Welsh, the prison camp's chief staff attorney, who testified that indeed the smoke detectors in the rooms were listening devices. He said he was surprised to learn so himself and only discovered it when he walked by one day and saw someone with headphones listening to a conversation going on in one of the rooms. When he asked questions about it, he learned that an FBI agent was listening in on discussion among a detainee, the prosecutor, and defense lawyers who were discussing a possible plea deal. Welsh said, however, that this was the only time he knew of that one of the devices had been used and assured the court that they were not being used to listen in on attorney-client conversations.
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