It has since come out that an audio feed of everything that went on in the courtroom, including attorney-client conversations at desk spaces, even when the official microphones were muted, was being sent to the classification authority, as well as to interpreters and court reporters. Although the courtroom technician who testified about the capacity said the voices would be hard to comprehend live -- kind of like picking out a conversation in a loud restaurant -- all that was needed to make the conversations audible was software readily available on the open market.
And then, to top it off, in the midst of arguments about the recordings in court last week, the guard force at the prison searched defendants' cells -- while they were in court and meeting with their attorneys. Some of the seized items included innocuous things like a photograph of the Grand Mosque in Mecca, but they also included the 9/11 Commission Report -- presumably highly relevant to people accused of committing the 9/11 attacks. The guard force had already approved these materials, and the vast majority of the items were returned. Defense attorneys, however, said that privileged legal documents were also seized.
While all this unannounced listening and confiscating was going on, a key motion on the agenda last week -- one that had been pushed aside to deal with the monitoring -- called for an order clarifying the rules under which defense lawyers can communicate in writing with their clients. The prosecution seeks to prohibit as contraband material on "current political or military events in any country; historical perspectives or discussions on jihadist activities." The defense says these subjects are essential elements of their defense and should not be banned.
For example, the book The Black Banners, by former FBI agent Ali Soufan, who has testified in many terrorism cases and is expected to testify in the 9/11 case as well, is apparently banned, according to a member of the military's Staff Judge Advocate's office who testified about the recent surprise searches. The book, which contains references to some of the accused, was confiscated last week from one defendant's cell. But the book was in the cell to begin with because it had been approved by the guard force. Clearly, consistency is another one of Gitmo's problems.
Members of the defense also say it takes weeks, if not months, to get information to their clients under the system set up to deliver mail from the United States to the prisoners at Guantánamo. This, combined with a lack of resolution over what materials are prohibited, has prevented them from effectively communicating with their clients for more than a year.
The chief prosecutor, Army Brig. Gen. Mark Martins, was not happy that the investigation into monitoring meant that substantive issues were being delayed yet again, but he agreed the eavesdropping matter needed investigation. Although the facts did end up revealing that microphones existed in attorney-client meeting rooms and that the classification authority had capacity to hear attorney-client conversations going on in court, Martins insisted "unequivocally" that monitoring by the prosecution or other parts of the government "was not happening." No one alleged that the prosecution took part in any monitoring. In fact, defense attorneys commended the prosecution for facilitating the investigation. Moving forward, Martins agreed to disable all the listening devices in the attorney-client meeting rooms. He also initiated a "push-to-talk" system in court so that the very sensitive microphones were not live all the time.
Still, military defense attorneys say, the damage is done. Since being assigned to the 9/11 case, they had worked hard to convince their clients that even though they were appointed by the same government that held the defendants in secret custody, tortured them, and detained them for 10 years without trial, they could still be trusted.
"All of this makes it almost impossible to maintain a relationship with our clients," said defense lawyer James Harrington at the end of the hearing. Harrington represents Ramzi bin al-Shibh, another Yemeni who the government alleges would, like bin Attash, have been one of the participants in the 9/11 hijackings if his requests for a U.S. visa had not been denied. "We are constantly having to vouch for the integrity of the system … yet the very rooms we are meeting our clients in are bugged," said Harrington.