9/11 Case Is Delayed as Defense Voices Fears on Eavesdropping

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FORT MEADE, Md. -- The tribunal case against Khalid Shaikh Mohammed and four others accused of being accomplices in the terrorist attacks of Sept. 11, 2001, was delayed again on Monday as defense lawyers pressed forward with concerns that their confidential communications with their clients and other counsel may be subject to eavesdropping by the government.

While the judge, Col. James Pohl of the Army, expressed skepticism about the legitimacy of the defense's fears, he agreed to postpone a scheduled pretrial-motions hearing for a day so the defense lawyers could finish interviews with audio technology officials who will be called on Tuesday to testify about the audio systems at the military prison and courtroom at Guantánamo Bay, Cuba.

All five defendants were in the courtroom on Monday, sitting quietly and leafing through papers. They spoke briefly, confirming to the judge that they understood their right to attend, or choose not to attend, other hearings in the next few days.

The defense raised the concerns about potential monitoring after an episode this month when the public feed from the courtroom, which is transmitted on a 40-second delay, was abruptly cut by an outside censor, apparently from the Central Intelligence Agency, after one lawyer made an oblique reference to the agency's secret overseas "black site" prisons. The event brought to light that intelligence agencies were monitoring a live feed of the proceedings and could turn off the feed if they decided that classified information had been disclosed, though Colonel Pohl said it had not been.

Defense lawyers said the event "crystallized" their fears that their confidential communications may be subject to eavesdropping. Saying they cannot ethically represent their clients while they have a basis to fear that is the case, they have effectively ground the proceedings to a halt in order to investigate further.

The chief prosecutor, Brig. Gen. Mark Martins of the Army, told reporters on Sunday, "My staff and I spent a full week diligently running every rumor to ground, and I can say unequivocally that no entity of the United States government is listening to, monitoring or recording communications between the five accused and their counsel at any location."

But in the courtroom on Monday, one defense lawyer said that her investigations had given her reason to be suspicious. She recounted that last fall she had asked a guard whether what appeared to be a smoke detector in a meeting room was a listening device.

"I said, Mr. Guard, is that a listening device, and he said, 'Of course not,'" she said. "Well, guess what, Judge, it is a listening device" -- one that, she asserted, "has the ability to record."

Another defense lawyer, James Connell, said he had learned that the raw feed from the courtroom, which is apparently being listened to by the outside monitor, presents the entire "audio field" captured by all microphones in the courtroom, without a filter that prevents whispers and other low-level conversations from being heard in the version broadcast to the public.

Because that same feed goes to the court reporter for making transcripts, defense lawyers want to listen to some recordings to see what was picked up.

General Martins said he had no objection to calling witnesses to settle the issue, but objected to some of the statements by the defense lawyers, saying they were "shoveling" claims into the record that should be presented in testimony that is subject to cross-examination. He also suggested switching the microphones in the courtroom from a system in which they are always on unless a defense lawyer presses "mute" to one in which they are always off until specifically unmuted.

nation

This article originally appeared in The New York Times.


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