Below are observations of the NIMJ volunteer observer at the proceedings in United States v. Khalid Shaikh Mohammad et al. on Monday, February 11, 2013. The transcript from Monday’s hearing is available on the commissions website (here).

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This morning’s session began with AE 133, the defense emergency motion to abate the proceedings due to the revelation at the last session that an out-of-court government censor was apparently controlling the audio feed unbeknownst to the defense or the judge. Counsel for KSM asked the judge this morning for an additional 24 hours after interviewing the necessary witnesses in support of the motion. He opined that his difficulty in scheduling those interviews was yet one more example of the prejudice to the defense caused by the government’s decision to hold the proceedings on a remote island in the Caribbean.

Although the judge had reportedly expressed ire and indignation at the last session when the activities of the unknown government censor were revealed, he seemed — at least initially — decidedly less sympathetic to the defense position today. In particular, he appeared skeptical that defense had any evidence whatsoever that an agent of the government was monitoring their privileged communications. He noted that there is a little sign on every microphone in the courtroom advising caution with live microphones, and that there is a mute button on each mic. Counsel for KSM replied that the mute buttons apparently do not work, because he had tested them with the court reporter, who could still hear him when the mute was pressed.

Counsel for Al Baluchi then proffered additional information, learned during interview of the courtroom technology expert, to clarify the situation. He explained that all 27 mics in the courtroom are incredibly sensitive and will, working together, pick up virtually every sound made in the courtroom. All of that raw sound then gets filtered through a “gate.” The filtered or “gated” audio is what goes through the audio feed heard in the gallery and at remote locations. But the “pre-gated” audio field containing everything picked up on every mic goes to an agent of the original classifying authority (the member of the intelligence community with a stake in the information). Counsel further explained that even if a defendant or counsel presses mute on the nearest mic, the audio will still be picked up on other mics in the room. This gives rise to the defense concern that conversations at defense table made with the expectation of privilege are being monitored and possibly retained by an agent of the government.

Counsel for bin’Attash was more strident in expressing her concerns. She relayed that although she had explicitly asked whether the meeting rooms at the detention facility were monitored and was explicitly told that they were not, she has since learned that there are in fact listening devices masked as smoke detectors, and that these devices have a recording function as well. The judge accepted those representations to a point, but he then stated that these issues would be more properly introduced through the presentation of evidence than through counsel’s proffer. The judge took issue with counsel for bin’Attash’s other concern — namely that she had been previously unaware that the prosecution owns and prepares the record of trial (unlike in civilian courts, where this function is judicial) — noting that this is how it has worked in military courts for many years, and that counsel’s lack of awareness of this basic fact did not make it unfair. Counsel stated that nonetheless, the fact that the prosecution possesses and controls the audio feed — which may contain privileged material — even for the purposes of preparing a record of trial was problematic.

The prosecution stated that currently the mics operate with a default of recording unless the mute button is affirmatively activated, but that the government is able and willing to change the system from “push to mute” to “push to talk.” The prosecution further agreed to recess while that change was implemented (estimated several hours), which would also allow defense additional time to conduct interviews on the subject.

Faced with a defense request for the pre-gated audio feed to allow defense to determine whether any privileged communications were captured, the judge asked each defense team whether they agreed to have the audio feed given to all defense teams, noting that one defendant’s privilege is not another’s. There were no objections. Counsel for bin’Attash dryly notd that she did not see how they could possibly be privileged at this point, but that she had no objection to her fellow defense counsel hearing what the government had already heard.

The judge granted the government proposal to modify the audio system. He further granted the defense request to continue the proceedings until 0900 tomorrow morning. At approximately 1020, court had adjourned for the day. Meanwhile, defense will review some of the pre-gated audio feed and conduct witness interviews in preparation for hearing of this motion tomorrow.

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