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| Judge in 9/11 Case Orders End to Outside Government Censors | Judge in 9/11 Case Orders End to Outside Government Censors |
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| FORT MEADE, Md. — The military judge overseeing the prosecution of Khalid Shaikh Mohammed and four other detainees accused of aiding the Sept. 11 terrorist attacks ordered the government on Thursday to disconnect the technology that allows offstage censors — apparently including the Central Intelligence Agency — to block a public feed of the courtroom proceedings at Guantánamo Bay, Cuba. | |
| The order by the judge, Col. James L. Pohl of the Army, followed an interruption on Monday of a feed from the military tribunal courtroom during a pretrial motion hearing in the Sept. 11 case. The interruption brought to light that unidentified security officials outside the courtroom could censor a feed of the proceedings that the public and the media are allowed to view on a 40-second delay. | |
| “This is the last time,” Colonel Pohl said, that any party other than a security officer inside the courtroom who works for the commission “will be permitted to unilaterally decide that the broadcast will be suspended.” | “This is the last time,” Colonel Pohl said, that any party other than a security officer inside the courtroom who works for the commission “will be permitted to unilaterally decide that the broadcast will be suspended.” |
| He added that while some legal rules and precedents governing the military commissions were unclear, there was no doubt that only he, as the judge, had the authority to close the courtroom. While officials may disagree about whether classified information had been improperly disclosed, he made clear he would not tolerate any outside party having control over a censorship button in his case. | He added that while some legal rules and precedents governing the military commissions were unclear, there was no doubt that only he, as the judge, had the authority to close the courtroom. While officials may disagree about whether classified information had been improperly disclosed, he made clear he would not tolerate any outside party having control over a censorship button in his case. |
| “The commission will not permit any entity except the court security officer to suspend the broadcast of the proceeding,” Colonel Pohl said. “Accordingly I order the government to disconnect any ability of a third party to suspend broadcast of the proceeding, and I order any third party not to suspend proceedings.” | “The commission will not permit any entity except the court security officer to suspend the broadcast of the proceeding,” Colonel Pohl said. “Accordingly I order the government to disconnect any ability of a third party to suspend broadcast of the proceeding, and I order any third party not to suspend proceedings.” |
| The 40-second delay in the closed-circuit broadcast from the high-security courtroom at Guantánamo Bay was instituted to allow a censor to block transmission of the proceedings to the public and reporters if classified information was inadvertently disclosed. But until Monday, there was no public sign that anyone other than the courtroom officer near Colonel Pohl could turn off the transmission. The feed is shown at Fort Meade as well as at a press room at Guantánamo. | The 40-second delay in the closed-circuit broadcast from the high-security courtroom at Guantánamo Bay was instituted to allow a censor to block transmission of the proceedings to the public and reporters if classified information was inadvertently disclosed. But until Monday, there was no public sign that anyone other than the courtroom officer near Colonel Pohl could turn off the transmission. The feed is shown at Fort Meade as well as at a press room at Guantánamo. |
| The interruption came as David Nevin, a lawyer for Mr. Mohammed was discussing arguments over a pending motion regarding the preservation of evidence “at a detention facility.” Colonel Pohl expressed surprise and anger, saying Mr. Nevin had not said anything classified and that his security officer in the courtroom had not hit the censor button. | The interruption came as David Nevin, a lawyer for Mr. Mohammed was discussing arguments over a pending motion regarding the preservation of evidence “at a detention facility.” Colonel Pohl expressed surprise and anger, saying Mr. Nevin had not said anything classified and that his security officer in the courtroom had not hit the censor button. |
| Colonel Pohl on Tuesday ordered the government to add to a public transcript the portion of the proceeding that had been blocked from transmission, and read a cryptic partial explanation from the government that an “original classification authority” — apparently a reference to the C.I.A., since that is the agency that ran the secret “black site” prisons where the Sept. 11 defendants were previously held — was also monitoring the live feed for any disclosures of classified information. | Colonel Pohl on Tuesday ordered the government to add to a public transcript the portion of the proceeding that had been blocked from transmission, and read a cryptic partial explanation from the government that an “original classification authority” — apparently a reference to the C.I.A., since that is the agency that ran the secret “black site” prisons where the Sept. 11 defendants were previously held — was also monitoring the live feed for any disclosures of classified information. |
| The revelation that there were offstage censors monitoring the live feed of the transmission prompted concern from the defense lawyers, who on Thursday asked Colonel Pohl to stop any further consideration of motions in the case until they all could learn more about who is monitoring what communications related to the case. | The revelation that there were offstage censors monitoring the live feed of the transmission prompted concern from the defense lawyers, who on Thursday asked Colonel Pohl to stop any further consideration of motions in the case until they all could learn more about who is monitoring what communications related to the case. |
| In particular, the lawyers said, they wanted to know whether their confidential conversations with their clients or other counsel inside the courtroom and in attorney-client meeting rooms were being surreptitiously monitored. | In particular, the lawyers said, they wanted to know whether their confidential conversations with their clients or other counsel inside the courtroom and in attorney-client meeting rooms were being surreptitiously monitored. |
| In addition, late on Wednesday, the Pentagon disclosed that the “convening authority,” an official who oversees the military commissions system, had withdrawn charges against three other detainees who had been charged with conspiracy and providing material support to terrorism in connection with accusations related to explosives training in preparation for attacks. | In addition, late on Wednesday, the Pentagon disclosed that the “convening authority,” an official who oversees the military commissions system, had withdrawn charges against three other detainees who had been charged with conspiracy and providing material support to terrorism in connection with accusations related to explosives training in preparation for attacks. |
| The three — an Algerian, Sufyian Barhoumi, and two Saudis, Jabran Said Bin Al Qahtani and Ghassan Abdullah al Sharbi — were all arrested in a 2002 raid on a Qaeda-linked safehouse in Pakistan that captured a more prominent terrorism suspect, Abu Zubaydah. Each was charged in the final days of the Bush administration, but their cases had not yet been referred to a commission for arraignment. | The three — an Algerian, Sufyian Barhoumi, and two Saudis, Jabran Said Bin Al Qahtani and Ghassan Abdullah al Sharbi — were all arrested in a 2002 raid on a Qaeda-linked safehouse in Pakistan that captured a more prominent terrorism suspect, Abu Zubaydah. Each was charged in the final days of the Bush administration, but their cases had not yet been referred to a commission for arraignment. |
| In terse announcements added to the docket for each of their cases, the military said the convening authority, retired Vice Adm. Bruce MacDonald of the Navy, had decided to withdraw the charges based on the recommendation of his legal adviser. The charges were dismissed “without prejudice,” meaning they could later be refilled. | In terse announcements added to the docket for each of their cases, the military said the convening authority, retired Vice Adm. Bruce MacDonald of the Navy, had decided to withdraw the charges based on the recommendation of his legal adviser. The charges were dismissed “without prejudice,” meaning they could later be refilled. |
| The validity of the charges of material support and conspiracy — at least for actions before October 2006, when Congress listed those offenses in a statute authorizing military commissions — has been a point of contention among officials involved in the tribunal system. A federal appeals court in Washington has in recent months vacated guilty verdicts by a tribunal in 2008 against two detainees facing such charges because they were not recognized as war crimes under international law. | The validity of the charges of material support and conspiracy — at least for actions before October 2006, when Congress listed those offenses in a statute authorizing military commissions — has been a point of contention among officials involved in the tribunal system. A federal appeals court in Washington has in recent months vacated guilty verdicts by a tribunal in 2008 against two detainees facing such charges because they were not recognized as war crimes under international law. |
| The chief prosecutor of the military commissions system, Brig. Gen Mark Martins, asked Admiral MacDonald to withdraw “conspiracy” as one of the charges pending against the Sept. 11 defendants in light of the appeals court’s reasoning, saying the offense created an unnecessary appellate risk for the case and that they should focus on legally sustainable charges like attacking civilians. | The chief prosecutor of the military commissions system, Brig. Gen Mark Martins, asked Admiral MacDonald to withdraw “conspiracy” as one of the charges pending against the Sept. 11 defendants in light of the appeals court’s reasoning, saying the offense created an unnecessary appellate risk for the case and that they should focus on legally sustainable charges like attacking civilians. |
| But Admiral MacDonald refused to withdraw the charge in the Sept. 11 case, saying it would be “premature” to do so since Attorney General Eric H. Holder Jr. had decided — over General Martins’s objections — to press forward with arguing in court that conspiracy was a valid offense in commissions. It was not clear why it was premature to drop the charge in the Sept. 11 case, but not in the other three. | But Admiral MacDonald refused to withdraw the charge in the Sept. 11 case, saying it would be “premature” to do so since Attorney General Eric H. Holder Jr. had decided — over General Martins’s objections — to press forward with arguing in court that conspiracy was a valid offense in commissions. It was not clear why it was premature to drop the charge in the Sept. 11 case, but not in the other three. |
| Separately on Thursday, Colonel Pohl ordered Admiral MacDonald to testify at the next week of hearings in the case, which begin on Feb. 11. Defense lawyers are seeking to scuttle the charges and reboot the case, alleging that the original referral of the capital charges to the tribunal by Admiral MacDonald was defective and tainted by unlawful influence. | Separately on Thursday, Colonel Pohl ordered Admiral MacDonald to testify at the next week of hearings in the case, which begin on Feb. 11. Defense lawyers are seeking to scuttle the charges and reboot the case, alleging that the original referral of the capital charges to the tribunal by Admiral MacDonald was defective and tainted by unlawful influence. |