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Irregularities Undermine Legitimacy of Second Version of 9/11 Trials

by Matt Clarke

When the American government first determined that it would proceed with trials by military tribunal against the prisoners it held at Guantanamo Bay, Cuba, the decision was met with skepticism by human rights advocates. The Supreme Court declared the first version of military tribunals to try 9/11 defendants unconstitutional; many questioned whether any version of a military trial could adequately safeguard the human rights of the accused. Now attorneys for the defendants are calling into question the second version of the military tribunals, complaining of the government listening into their confidential discussions with their clients, searching and seizing their client’s legal paperwork, and mistreating their clients.

The commander of the prison, Colonel John Bogdan, was recently called to the witness stand to testify on the presence of listening devices, disguised as smoke detectors, in the rooms used for confidential attorney-client consultations at the prison. Bogdan said he wasn't told about the microphones when he took over control of the prison, and that the rooms had been under the control of the FBI until 2008. However, this statement does not mean that the bugs were necessarily inactive. Bogdan also learned that the bugs had been accidentally disconnected during renovations in October 2012, and then reconnected by an unnamed intelligence service in December 2012.

Captain Thomas Welsh, an attorney for the prison, testified that he found out about the microphones in early 2012 and reported their presence to Colonel Donnie Thomas, then-warden of the prison, and sought assurances that privileged conversations were not being monitored. Bogdan gave the court just such an assurance.

"We understood that any listening to an attorney-client meeting is prohibited," said Bogdan.

Daphne Eviatar, Human Rights First's senior counsel and an observer at recent Guantanamo pre-trial hearings, wondered how Bogdan could give such guarantees about microphones of which he claimed he was unaware.

"The commander of the base himself didn't even know that the cells where the attorneys are allowed to interview their clients are all bugged," said Eviatar. "They all have audio surveillance equipment. That equipment is controlled by the intelligence agencies, not the commander of the base. It's not clear who knows what about how it was being used."

The attorney-client interview rooms are not the only place lawyers have to worry about being overheard in confidential conversations with their clients; their concerns extend to the court room as well. Defense lawyers recently discovered that the microphones used in the courtroom were unusually sensitive—they were able to pick up conversations of guards chatting in the far corners of the courtroom.

"I've been practicing law for 25 years and never have I been put in the position where I have to ask the following, 'Am I being listened to as I talk to my client?'" said Cheryl Bormann, whose client, Walid bin Atash, is accused of training some of the 9/11 hijackers. "My concern is I can't have a communication with my client in this court without it going on the record."

The discovery of the super-sensitive microphones followed a bizarre incident in which the public audio feed from the courtroom was suddenly cut when a defense attorney made a reference to torture while arguing in favor of an unclassified motion that evidence obtained by torture at CIA "black sites" in Afghanistan, Romania and Poland should be excluded. Military judge Colonel James Pohl was unaware of the outside ability to cut the feed that allowed the public and reporters to hear what was going on in the courtroom. When he demanded an explanation for the censorship, he was informed that an unnamed intelligence agency, monitoring the proceedings from an unspecified location, had decided to censor the proceedings. Pohl had thought the right of censorship had been reserved for the trial judge.

"What happened was shocking," said Captain Jason Wright, one of the attorneys for Khalid Sheikh Mohammed. "There’s a wizard behind the curtain who had the power to completely cut off the audio feed to the proceedings, to censor what was being said in court. It would be foolish for us to not consider that capability in other areas where we interact with the accused."

Defense attorneys for Mohammed, Walid Bin Attash, and Ramzi Bin al-Shibh also claim that guards searched and removed confidential legal papers and other property from their clients’ cells while their clients were at the courtroom.

"We need this to stop now," said Bormann. "This affects our ability to do our jobs."

“It causes an enormous emotional problem which makes our job close to impossible," said Bin al-Shibh’s attorney, James Harrington.

Eviatar said that defense attorneys are questioning whether they can provide a proper defense given the illegal spying on their conversations with their clients, restrictions on what evidence they can use, and the mistreatment of their clients.

"What we’re saying is they're not able to meet those basic legal and ethical obligations and that undermines the legitimacy of the entire trial. They’re not able to form a relationship with their clients because the client no longer trusts them because they're eavesdropping on them and reading their communications," said Eviatar. "It’s a legitimate concern. It really disrupts the ability of the attorney to develop any kind of relationship with the client. If they don't trust their own lawyer, it's difficult for them to participate in their own defense. That’s important, especially in a death penalty case."

Even Bruce MacDonald, the former vice admiral in charge of the 9/11 trials, has his reservations about the process. When defense attorney Commander Walter Ruiz challenged MacDonald's independence and commitment to a just trial, MacDonald took the stand and testified that he and other military lawyers at Guantanamo were "disgusted" by the Bush administration’s military tribunals and they had pushed to improve the system and asked for a bar on evidence obtained by torture.

Unfortunately, that bar is not in place and, even if it were, the chances are that the court would merely hold that "enhanced interrogation methods" such as waterboarding are not torture. Defense attorneys argue that the use of evidence obtained by waterboarding and other abusive practices should bar the government from seeking the death penalty—an argument so far unsuccessful.

"I think what's happening really seriously undermines with credibility of the process," said Eviatar. "These are new courts to begin with. The first version was struck down by the U.S. Supreme Court so you’re already starting with a lot of skepticism. And this current version hasn’t been tested in the U.S. Supreme Court yet. But there’s so many problems every step of the way that it’s going to be very hard for anyone to look back and say this was a fair trial."

And that may be the legacy of the Gitmo trials.

Source: The Guardian (U.K.)

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