Guantánamo war court case stalled over ethics issue

Carol Rosenberg

GUANTANAMO BAY NAVY BASE, CubaFebruary 4, 2013 

Faced with a continuing controversy over who’s listening in on the war court, the judge Monday proposed ripping out microphones at the defense tables of alleged al-Qaida terrorists to assure attorney-client privacy.

“Let’s just get rid of them, problem solved,” said Army Col. James Pohl, the chief of the Guantánamo war court judiciary, asking prosecutors to meet technicians overnight on the feasibility of dismantling another feature in the $12 million expeditionary war court that arrived on a barge from the United States in 2007.

The judge fell short of issuing a specific order to tear out the microphones, said Marine Maj. Jeff Pool, a Pentagon spokesman.

Pohl fashioned the solution after a lunch-time recess in which a civilian defense lawyer in the USS Cole bombing case was advised by one ethical advisor to withdraw from the case.

Defense lawyer Rick Kammen said he wasn’t withdrawing but that he needed more information about who was eavesdropping on his conversations with Abd al Rahim al Nashiri at the court and prison camps. Nashiri, who was born in Mecca, Saudi Arabia, is awaiting a death-penalty trial as alleged architect of al-Qaida’s October 2000 suicide bombing of the USS Cole off Yemen. Seventeen sailors died in the attack.

The judge’s proposed improvisation would amount to the latest hardware fix at the state-of-the-art court capable of cutting the public out of hearing CIA secrets.

Last week, Pohl ordered the prosecution to disconnect all remote-control mute buttons after a government agent outside the courtreached into a 9/11 trial hearing — and muted the microphone of a defense attorney. The lawyer was discussing a defense bid for a preservation order on what’s left of the CIA’s secret prison network where agents waterboarded Nashiri and other secret captives before they were brought to Guantánamo in 2006.

This week’s pre-trial motions are focusing on mental-health issues, notably the impact on Nashiri of his treatment by the CIA, which besides waterboarding him in interrogations, threatened to rape his mother and held a cocked pistol to his head while he was shackled, naked at a CIA prison. The defense says Nashiri is suffering from Post-Traumatic Stress Disorder but has not yet suggested he’s incompetent to stand trial.

Despite Pohl’s order to the government to disconnect all outside audio kill switches, defense attorneys said they were still concerned that outsiders were listening in on confidential conversations inside the court.

A prosecutor, Anthony Mattivi, then sought to demonstrate that microphones don’t pick up conversation from a distance by stepping away from the attorneys podium and continuing to speak. The demonstration appeared to fail: Mattivi could be plainly heard on remote feeds from the court from Guantánamo to an auditorium at Fort Meade, Md.

Earlier in the day the defense lawyers brought the USS Cole proceedings to a standstill while they consulted ethics advisors on whether they could continue to represent Nashiri in light of the revelations of outside monitoring of the maximum-security war court.

“There’s a man behind the curtain,” Navy Lt. Cmdr Stephen Reyes, Nashiri’s military defense lawyer told the judge. “We have an ethical obligation here to protect attorney-client confidences.”

Nashiri sat silently at the defense table in court while his lawyer said he was troubled by the possibility that CIA agents could eavesdrop on ostensibly private attorney-client conversations.

“If it is the CIA that is conducting the listening, this is the same organization that detained and tortured Mr. al Nashiri,” said Reyes. “It’s the same organization that lied to a federal court judge regarding the existence of videotapes.”

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