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Judge in 9/11 Case Orders End to Outside Government Censors
Judge Stops Censorship in Sept. 11 Case
(about 7 hours later)
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.
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.
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 hearing on a pretrial motion. The episode brought to light that unidentified security officials outside the courtroom could censor a feed of the proceedings that the public and the news media receive 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 military 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 said that while some legal rules and precedents governing the tribunals might be unclear, there was no doubt that only the judge has the authority to close the courtroom. Colonel Pohl made clear he would not tolerate anyone having control over a censorship button in the case other than his courtroom security officer.
“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.”
Separately on Thursday, Colonel Pohl ordered the Pentagon official in charge of the tribunals — Vice Adm. Bruce MacDonald, retired — to testify at a hearing next month. Defense lawyers are seeking to scuttle the charges and reboot the case, asserting that his original decision to refer the capital charges to the tribunal was flawed.
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.
One of several relatives of victims who traveled to Guantánamo to watch the hearing, Phyllis Rodriguez, whose son Gregory Rodriguez was killed at the World Trade Center, said she was disturbed by the limits on the openness of the proceedings and difficulties that defense lawyers had in gathering information that could mitigate against death sentences. Ms. Rodriquez said she opposed death sentences on principle and was opposed to prosecuting the case in a tribunal.
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.
But Matthew Sellitto, whose son — also named Matthew — was also killed in the attacks, called the process fair, saying the defendants would have already been executed by now in most countries. His wife, Loreen Sellitto, urged defense lawyers not to delay the proceedings, while describing the emotional experience of seeing the defendants in the courtroom.
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.
“I didn’t expect them to look normal and have normal faces,” Ms. Sellitto said. “That scared me.”
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 a related development, the Pentagon disclosed that earlier this week, Admiral MacDonald withdrew tribunal charges against three other detainees at Guantánamo. Accused of conspiracy and of providing material support to terrorism in connection with allegations related to explosives training, the three were among those arrested in a March 2002 raid in Pakistan that also captured a more prominent terrorism suspect, Abu Zubaydah.
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.
The validity of bringing charges of material support and conspiracy in a tribunal — at least for actions before October 2006, when Congress approved them as triable offenses in a military commission — has been a point of sharp contention inside the Obama administration. A federal appeals court recently vacated two such verdicts from tribunal cases because such offenses were not recognized as international war crimes.
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 chief tribunal prosecutor, Brig. Gen. Mark S. Martins, had asked Admiral MacDonald to withdraw conspiracy as one of the charges pending against the Sept. 11 defendants and focus on classic war crimes, like attacking civilians. But Admiral MacDonald refused, saying it would be “premature” to do so since the Justice Department — over General Martins’s objections — is still arguing in court that conspiracy is a valid tribunal offense.
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.
Most of the attention on Thursday, however, was focused on continuing fallout from the revelation that there were offstage censors — something that even Colonel Pohl apparently had not known — and his order to “unconnect whatever wires need to be unconnected.”
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.
Defense lawyers used the incident as new ammunition in their assertions that the tribunals are unfair.
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.
On Thursday they asked Colonel Pohl to stop any further consideration of motions in the case until they all could learn more about what kind of technology is in place in meeting rooms and in the courtroom, and whether their confidential conversations with their clients and one another are private.
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.
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.
