GUANTANAMO BAY NAVAL BASE, Cuba (AP) — The second round of pretrial hearings in the Sept. 11 case sputtered to a close Thursday with the judge ordering the government to remove censorship equipment from the courtroom at the U.S. base in Cuba but little progress on fundamental legal issues that must be resolved before the long-stalled case can go to trial.
Army Col. James Pohl ordered an undisclosed government agency to disconnect equipment it used to unilaterally cut the courtroom sound system to prevent the release of classified information to spectators. His abrupt order came toward the close of a four-day hearing devoted largely to such procedural matters as the rules for handling evidence.
The existence of a previously unknown government censor may have created a new delay, as the defense filed an emergency motion to halt proceedings until they can be assured that officials are not surreptitiously monitoring their communications with the defendants, who are facing death penalty charges for their alleged roles planning and aiding the Sept. 11, 2001, terrorist attacks.
Pohl did not immediately rule on their request, but said he would hear arguments on their motion at the start of the next session, scheduled to start Feb. 11 at the base. “This needs to be resolved before anything else,” he said.
Five Guantanamo Bay prisoners, including self-proclaimed mastermind Khalid Sheikh Mohammed, are being tried on charges that include murder and terrorism in a military commission, a special tribunal for wartime offenses that includes elements of a court martial and civilian criminal court. They could get the death penalty if convicted at a trial that’s at least a year away, and likely much farther off at this rate.
The Judge said in ruling on the censor that only he has the authority to decide when to close a hearing or when spectators should be prevented from hearing testimony, and he ordered the government to disconnect any equipment that would enable officials to unilaterally cut the sound feed in the courtroom at the U.S. base in Cuba.
Spectators, who include journalists and relatives of people killed in the Sept. 11 terrorist attacks, watch proceedings from behind soundproof glass with a 40-second delay so that a courtroom security officer, in consultation with the judge, can turn on a white noise machine at the mention of any classified information.
But on Monday, the white noise machine was suddenly activated — without the apparent knowledge of the judge or his courtroom security officer — when a defense attorney began to refer to the secret CIA prisons overseas where the five Sept. 11 defendants were held before they were taken to Guantanamo. The judge later determined the statement was not secret and he released a transcript of the remarks.
The identity of the person who cut the sound has not been released, but a prosecutor later said it was an “OCA,” a government term for Original Classification Authority, a broad category that refers to any agency, such as the CIA, that has responsibility for the classified information at issue. Judge Pohl said it was inappropriate for anyone but him to close courtroom proceedings.
“This is the last time that an OCA or any other third party will be permitted to unilaterally decide that a broadcast should be suspended,” he said.
He then ordered the government to “disconnect any ability or any third party to suspend the broadcast of these proceedings.”
David Nevin, the attorney for Mohammed whose remarks prompted the censor, said the censorship incident raised fears among attorney that all their confidential conversations with clients are being monitored. That would violate attorney-client privilege and mean they could not continue to speak with the accused without breaching the rules of professional conduct for defense lawyers.
Before the censorship issue, the four-day hearing had been dealing with procedural matters such as the rules for calling witnesses and handling classified evidence.
This is a far more complex case than has been handled by a military commission in the past, so there are many preliminary rulings that must be addressed. Among them is the question of whether the defendants themselves can be allowed to attend closed session during which classified matters are discussed. Since many issues must be resolved in closed session, that question has to be answered before more substantive issues can be addressed.