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.
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.
While military commissions themselves are still being debated, even their proponents should be disturbed by recent developments. Although the judge ordered the listening devices disconnected and the push-to-talk change to courtroom audio feed, whether a violation of the attorney-client privilege has occurred has yet to be resolved. The defense will probably make the argument at some point that the incidents thus far have so substantively undermined the attorney-client relationship that it will be impossible for defendants to get a fair trial.
The foundation upon which the military commission system rests is already shaky. The commissions are new and untested, so even basic elements -- such as how to call witnesses and how to screen mail -- have to be litigated. As a result, little of substance in the 9/11 case has been decided and a trial is still years away.
While Martins understandably wants to avoid serious appellate issues in the case, that now seems virtually impossible. There is little doubt, even at this early stage, that any verdict handed down would not face serious challenges on appeal. Meanwhile, after setting the system in motion, the White House seems to have abandoned all interest, not just in the military commissions, but in Guantánamo altogether. By the time any of these appellate issues in the 9/11 case come up, it's likely that President Barack Obama's second term will have ended. And frankly, the constituency that supports the rights of the 166 prisoners at the facility is not one he seems too concerned about.
There was no better indication of this than the president's recent State of the Union address, piped into the hangar-turned-media-center at Guantánamo. The president's failure even to mention the facility stands in stark contrast to his actions four years ago -- when on his second day in office, with 16 retired generals and admirals standing behind him, he ceremoniously signed an executive order to close the Guantánamo detention facility within one year. Several months later at his National Archives speech, Obama said Guantánamo "weakened American national security," was "a rallying cry for our enemies," and "set back the moral authority that is America's strongest currency in the world."
Of the 166 prisoners who remain there, 86 are slated for release. Many of these men have been in Guantánamo for more than a decade but, the Obama administrations claims, for a variety of reasons they cannot be sent home: their home state is too unstable; they would face persecution there; or there's simply no third country that will accept them.
Yet even those approved for transfer with places to go, like British resident Shaker Aamer, have not been transferred. As of last week, Aamer had been in Guantánamo for 11 years. He has a wife and four kids in the United Kingdom, a country that has indicated it is willing to accept him.
Another 46 are designated for indefinite detention -- deemed unsuitable for prosecution yet "too dangerous" to release. Obama signed an executive order on March 7, 2011 providing these detainees the ability to challenge this designation. But the board before which they would appear has yet to even meet. Thirty-four prisoners have been slated for prosecution, but only six of those, including the five 9/11 defendants, face any formal charges as of yet.
Starting in 2009, Congress began enacting a series of progressively more stringent, but not insurmountable, restrictions on transferring detainees out of Guantánamo. The restrictions now bar transfer to the United States even for trial. For transfers to other countries, Congress requires the secretary of defense to sign a certification finding, among other things, that there is little chance a detainee will become involved in terrorism. Meanwhile, the administration continually blames its failure to close the facility on the restrictions imposed by Congress, yet Obama failed to vigorously oppose them. In fact, he twice signed them into law rather than exercising his threat to veto them. In the last signing statement enactment, he claimed he had the constitutional power, as commander in chief, to lawfully override them; needless to say, he has not exercised this authority.
As if to send the message home, at the end of January, the State Department announced that Daniel Fried, special envoy for closing the prison at Guantánamo, was leaving his position to take on a different role and would not be replaced. His duties, read a notice from State, would be assumed by the Office of the Legal Advisor. A spokesman for Fried's office, Ian Moss, told the New York Times that his departure did not mean the administration had given up on closing the prison. "We remain committed to closing Guantánamo, and doing so in a responsible fashion," Moss said. "The administration continues to express its opposition to Congressional restrictions that impede our ability to implement transfers."
That may be so, but expressing opposition to congressional restrictions is clearly not enough. The world is watching. These trials and how the United States conducts them will set, and are setting, a precedent for justice. Although the number may seem small, the indefinite detention -- without trial -- of anyone gives a green light to other governments to do the same. Obama may want to focus on other things, but he was right when he said Guantánamo "weakened American national security" and is "a rallying cry for our enemies." And unless he takes his head out of the sand, he will find his own prophecies coming true.