Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Tuesday, February 12, 2013. The transcripts from Monday’s and today’s hearings are available on the commissions website (here). .

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Court reconvened at 0900 with KSM, bin’Attash, and bin al Shaib present. The other two defendants had elected not to attend.

Resuming the litigation of AE 133, counsel for KSM called the civilian CCTV technology program manager, who is responsible for the recording and broadcast of audio and video of commission proceedings. The witness testified to the functioning of FTR Gold, a court-reporting system used at GTMO and also widely used in courts throughout the United States. He explained that all audio feed from every microphone in the courtroom is directed to a digital mixing board, which serves as a gate in the path of the sound. Only sounds above a certain decibel level – generally, between -40 and -60 decibels – passes through the gate. Some sounds near the threshold may be picked up, but not very clearly. The witness further testified that if a sound did not make it through the gate, it would not be able to be heard, even on the ungated feed.

The gated audio goes to the gallery and other offsite viewing locations. The ungated feed goes to three entities: the court reporter, the interpreters, and the OCA (original classification authority). Perhaps foreshadowing a prospective remedy, the judge interjected to ask the witness whether it is possible to change the system to route only gated audio to those three entities. The witness affirmed that such a change is technologically possible. Counsel for al Baluchi asked numerous times how any changes to the gating system would be documented, what form that documentation would take, and what proof the defense would receive. This line of questioning elicited an increasingly testy response from the judge, who ultimately shut it down as irrelevant.

The witness acknowledged that more than one microphone can pick up a person’s words, assuming that the person is speaking loudly enough and aiming his voice near a nearby microphone. But, he asserted, if one is careful to press the mute button on the nearest mic and to whisper, one’s sidebar conversations will not be picked up by other mics. Near the end of his testimony, the witness attempted to illustrate his point by pressing the mute button on the mic in the witness box and whispering words to the effect that “now the other microphones can’t pick up my voice.” His intended point was rather severely undermined by the fact that all of us in the gallery receiving the gated feed heard him clearly (though less loudly) say those words, which must have been picked up on other mics….

On cross-examination by trial counsel, the witness explained that when the mics feed into the gate, all of the sound is mixed. The FTR Gold software is capable of separating the audio into eight channels. Only the court reporter receives these eight channels; neither the interpreter nor the OCA has the capability to break the audio into channels. Later, on redirect, the witness conceded that he has no knowledge of the OCA’s technology, which served to undermine his earlier assertion that the OCA did not have that capability.

Trial counsel elicited testimony that the OCA does not have the ability to record, amplify, or clean up the ungated audio feed. The witness further testified that his office maintains (in a safe) the only two recordings of the proceedings, and that no one from the prosecution or any other government entity had ever asked for those recordings. On redirect, the defense asked various questions designed to get to a point that may be summarized as follows: “Really? The original classification authority, whomever it may be, could not possibly have the technology to record, amplify, or clean up sound from these courtroom microphones? Not with a handheld tape recorder or garden-variety amplifying device, not by purchasing the FTR Gold software, not through whatever more sophisticated technology it may have at its disposal?” In the end, the witness’s acknowledgement that he was not familiar with the OCA’s technological capabilities left open the question of what could potentially happen to the ungated feed. However – theatrics aside – without any evidence that any of these nefarious possibilities actually occurred, it is unclear that the defense can meet its burden of proving that the channeling of ungated audio feed to the OCA infringed defense counsels’ ability to communicate confidentially with their clients. In a more typical case, the judge might permit the third party to be called on to testify about what it did or did not do. But it would seem unlikely that the OCA will be called to the stand.

Another aspect of AE 133 alleges that the government has improperly monitored confidential defense communications using hidden microphones in defense meeting spaces. To speak to this issue, the defense first called the Staff Judge Advocate to the Commander of JTF GTMO (the command that runs the detainee operations). The SJA testified that in January 2012, during a proffer session involving a detainee along with prosecutors, defense counsel, and law enforcement officers, he observed a law enforcement agent in the control room listening in on the meeting using headphones. The proffer session was taking place in a meeting space that was then, and is now, used for meetings between defense counsel and their clients. The SJA testified that he knew that it was standard operating procedure to monitor meetings in these rooms by video, for security and safety reasons; however, he had not previously been aware of the capability to monitor these meetings by audio. The following day, he raised it with the JTF commander, who assured him, “Don’t worry, we never listen in on defense counsel.” The SJA was satisfied with this representation and took no further action to investigate. Apart from this one occasion, the SJA was never aware of anyone using the audio-monitoring capabilities to listen to something in the meeting rooms. He is not aware of when those capabilities were installed, nor of what the meeting rooms were used for in the past, before the military commissions began and when intelligence-gathering was a more prominent function of the JTF.

The defense questioned the SJA about several of his emails, which the government had provided in discovery. First, they called his attention to an email that the JTF commander (a different officer from the one with whom the SJA discussed the monitoring of the proffer) sent to the Public Affairs office. The email contained a document relating to a press inquiry, which stated words to the effect that “no microphones are installed in the meeting rooms to ensure that attorney-client privilege is maintained.” The SJA explained that he had not seen the document before it went out (which is evident from the fact that he was not on the original email chain and was sent the document by his commander only after the fact), and further that he does not recall having ever opened the attachment, since he would have seen that it had already gone out to the PAO before he received it.

The SJA testified that the microphones are concealed in what appears to be a smoke detector. On cross-examination, trial counsel attempted to elicit that the device was “clearly marked” with a particular logo, and that a simple Google search would have revealed that this logo was that of a listening device. The witness was not able to read the marking on the side, and the judge seemed incredulous at what he perceived as a suggestion that counsel and defendants were somehow on notice that their communications were being monitored. Trial counsel clarified that he was not suggesting that; rather, he was merely pointing out that if the government had wanted to hide the existence of this device, it could have done a better job.

Defense counsel also called the SJA’s attention to the 27 Dec 2011 order regarding procedures for attorney-client meetings, and in particular to the section that requires counsel to advise the government in advance of what languages will be used during a meeting. The SJA stated that this provision was never enforced and that he did not know or recall its purpose. He conceded that this could, in retrospect, be read to suggest that defense conversations would be monitored by a government interpreter. He also acknowledged that the only way to verify which language had been used, had compliance with this provision been enforced, would be to listen to the meetings. However, to his knowledge, that never happened. Trial counsel later suggested on cross that since some defendants speak multiple languages, the government might have asked what languages were to be used in order to divine how many meeting participants (including interpreters) would be attending, which is relevant to security procedures. With respect to the portion of the order requiring that detainee-attorney meetings use only one language to the extent possible, and prohibiting detainee-interpreter sidebar conversations, the SJA testified that the JTF has a security interest in restricting any conversations a detainee may have with an interpreter not involving defense counsel.

The witness testified that when a defendant moves anywhere, it is SOP to conduct a security inspection of that defendant and anything that comes with him (including his legal bin). He is not aware of any legal mail having been seized.

The final full witness of today – called out of order by video-teleconference on three other motions (8, 18, and 32, dealing generally with privileged mail communications) was an Army lieutenant colonel who was in charge of high-value detainee issues at the SJA office. He described his primary job function as delivering mail to and from the HVDs. When asked about this function, he stated that his job was to search the mail for physical contraband only, with no review of written contents. (He further offered, on three separate occasions, that “the detainees knew the SOPs and made sure we did it properly.”) He testified that in early fall 2011, he became aware of a policy change at the SJA’s office that would require searching detainee’s mail for content. Defense counsel attempted to elicit that he objected to this concept for ethical principles, and to a limited extent he did give that response, but his greater concern appears to have been that it would make his job more difficult by hampering his relationship with the HVDs. Ultimately, the witness testified that he expressed his concerns to the SJA, and that shortly afterward, he was relieved of his position and replaced with someone who, in his opinion, had no ethical concerns about reading attorney-client mail.

The SJA was then very briefly recalled, purportedly on AE 133. He stated that he is not aware of legal mail being reviewed for content. If he were aware of anyone monitoring (including for intelligence purposes) attorney-client communications, he would notify his supervising attorney, “because that would be wrong.” This appears to go to the mail issue, which will be covered in more detail on other motions scheduled to be litigated this week.

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