Defense attorneys raised concerns about whether an external body was monitoring the Military Commission proceedings held at the Expeditionary Legal Compound in Guantanamo Bay Monday in the trial of five men accused of plotting the September 11 attacks.
Court had just reconvened after a fifteen-minute recess, where Judge James Pohl had given defense attorneys time to decide whether to agree to the rules surrounding the prosecution’s disclosure of classified information, which could include discussion of black site detention centers.
Just as defense attorney David Nevin, lead counsel for Khalid Sheik Mohammed, was telling the court that they would agree to have the motion considered in a closed, so-called ‘505 hearing’, the sound cut-off.
Static fed through the courtroom monitors and a red light spun from the judge’s bench. Victims’ family members, human rights observers and journalists sitting in the back of the courtroom behind a plexi-glass wall could watch what’s happening in front of them, but could not hear anything from the closed circuit monitors and audio feeds that are on a 40 second delay.
When the feed was restored, a frustrated Judge Pohl told the court he did not initiate the audio dump, suggesting there was someone else monitoring the military courtroom.
“If some external body is turning the commission off,” the judge said, appearing to direct his comments towards the government, “we’re going to have a little meeting.”
“I can address that in the 505,” said Joanna Baltes, an attorney for the Justice Department.
But defense attorneys raised serious concerns. David Nevin, Cheryl Bormann and Navy Cmdr. Walter Ruiz each approached the podium to ask the court who operates the courtroom’s security system and said they wanted to know whether other things, like attorney client communication at the courtroom tables, was also being recorded.
A Defense Department spokesman would not comment on the incident or to what extent the prosecution knew who controlled the courtroom feeds.
“We don't discuss the security apparatus that surrounds the commissions, the JTF, or the detainees themselves,” said Lt. Col. J. Todd Breasseale.
The episode lasted just about ten minutes. But it wasn’t the only dramatic moment of the first day of a four-day hearing on pre-trial motions.
Judge Pohl also asked each of the defendants if they understood their right to be present at the pre-trial hearings and what it meant to voluntarily waive that right. Pohl addressed each defendant directly and said they would need to respond if they were going to choose not to attend the rest of the hearings this week.
He started with Khalid Sheikh Mohammed, who sat at the table in the front of the courtroom closest to the judge. Wearing a camouflage jacket, glasses and what looked like traditional clothes, including a keffiyeh tied around his head, Mohammed replied to the judge. A translator told the court that, yes he understood his rights, and no he didn’t have any questions.
Walid Bin Attash, seated with his counsel at a table a row behind Mohammed, said he also understood his rights but before saying whether he had any questions he spoke at length complaining, according to the English translation, “We don’t have any motivating factors that would make us come to court.”
Bin Attash said he did not want to make it a “personal issue” with the judge but, “I want you to understand this issue we’re in,” explaining that after even after a year, he had not developed a relationship with his attorneys. He asked earlier in the day that one member of his military attorneys be removed from his defense team.
The judge only repeated his questions and eventually Bin Attash said he understood and had no questions. The other defendants, Ramzi bin al Shibh, Ammar al Baluchi, and Mustafa al Hawsawi, also each acknowledged their rights and said they had no questions.
The judge said he would not make the defendants appear in court to hear him read these rights again in February, if they opted not to appear. But he said he would expect to bring them back for the April hearing.