A secret Defense Department program provides unfettered eavesdropping on the accused terrorists imprisoned at Guantanamo's clandestine Camp 7 lockup, recently released war court documents show.
Army Col. James L. Pohl, the judge in 9/11 trial, discovered the existence of the secret surveillance program during a recent war court hearing. Little is publicly known about the program, not even its unclassified two-word nickname.
The disclosure of pervasive eavesdropping at Guantanamo's lockup for 14 former CIA prisoners comes in before-and-after documents released by the court from the recent Oct. 19-30 pretrial hearings in the death-penalty case of five men accused of orchestrating the hijackings that killed nearly 3,000 people on Sept. 11, 2001.
At issue was accused 9/11 plotter Walid bin Attash's request for guidance on how he could function as his own attorney. Bin Attash is a Yemeni in his mid-30s who is accused of training some of the hijackers.
"You must assume anything you say in Camp 7 is not confidential and will be disclosed to the U.S. Government," warns an Oct. 23 draft of the advisory, crafted after the judge was informed of the covert program. "Only when you are in Echo 2 will anything you say be covered by the attorney-client privilege."
An Oct. 20 draft of the advisory omits those lines.
This is not the first time in the proceedings that a surveillance program caught Pohl by surprise. In January 2013, he ordered the CIA to unplug a button that allowed an unseen observer to cut the court's audio feed to the public.
Perhaps ironically, the lone site the judge considers safe for consultative trial preparation -- the Camp Echo compound of wooden huts, each containing a cell -- at one time had covert recording devices that looked like smoke detectors. The judge ordered them disabled in February 2013.
Attorney Dror Ladin of the American Civil Liberties Union, who was an observer at the Guantanamo hearings last month, said the apparent disclosure of "pervasive surveillance at Camp 7" is the latest issue to challenge the possibility of a fair trial.
"It is shocking that for years neither defense counsel nor the judge were made aware that the government was capturing everything said aloud by the detainees there," he said Thursday.
It also adds to mounting questions of "how these military commissions can produce a fair result," said Ladin, especially if one of the men represents himself. "These are detainees who really can't see the evidence against them and simultaneously have been provided no rehabilitation services for the torture they suffered for years. It would be astonishing if any of them could craft a fair defense for capital charges."
A defense attorney in another case said the prosecution wants to use a surreptitiously recorded conversation between two Camp 7 captives against an alleged al-Qaida commander. And in 2012 the journalist Daniel Klaidman wrote in his book "Kill or Capture" that the U.S. government had recordings made in a Guantanamo prison recreation yard of the alleged Sept. 11 mastermind Khalid Sheik Mohammed talking about evidence that could be used against him.
The latest disclosure comes at a time of decreasing transparency at the war court.
On Oct. 29, the judge held a 13-minute secret session without advanced notice to the public. A day later the judge wrote in a three-page ruling that he closed the court at the request of "the Government" -- war-court-speak for the prosecution -- to protect state secrets whose disclosure "could result in grave danger to national security."
Pohl also ordered the court to issue a censored transcript of the parts the excluded public and accused would be allowed to see. No transcript has been released.
Then the next day, Oct. 30, the judge held a daylong, open hearing on a restraining order he issued forbidding female guards from touching the 9/11 accused when they are being taken to court or legal meetings. The judge's order has outraged members of Congress and the Pentagon brass.
In that public court hearing, soldiers called as witnesses from the prison discussed staffing patterns at Camp 7. Normally the Pentagon releases transcripts of open hearings the same day. Unusually, the court has not yet released the Oct. 30 transcript.
A Pentagon spokesman suggested Thursday -- 13 days after the open court hearing -- that somebody was scrubbing the transcript of information already made public. "The security review of the Oct. 30 transcript remains ongoing," said Navy Cmdr. Gary Ross. "We will provide an update once additional information becomes available."
Much of the October session focused on bin Attash's question about how he'd act as his own lawyer in a system that does not let the accused terrorist see classified information in the case.
The judge and attorneys devoted days to designing a script Pohl would read to any accused 9/11 terrorist who tries to take charge of his defense -- and spent a full afternoon huddling in a closed meeting on the secret program.
In it, Pohl made clear that he never intended to let bin Attash dismiss his Pentagon-paid defense attorneys -- Chicago criminal defense attorney Cheryl Bormann and Air Force Maj. Michael Schwartz.
Instead, the script shows Pohl planned to appoint Bormann and Schwartz as "standby counsel" the judge could activate to carry out cross-examination of certain witnesses who might have "particular sensitivities" to being questioned by the alleged terrorist.
"If you are represented by lawyers, then it is the lawyers, and not you, who will conduct the defense," the warning says. "Correspondingly, if you represent yourself, you will be able to perform the lawyer's core functions, but you will not necessarily be allowed to direct special appearances by counsel when it is convenient to you."
The language suggests a far more limited role by the American lawyers than those carried out in an aborted attempt to hold the Sept. 11 trial during the Bush administration. In those proceedings, alleged 9/11 terrorists serving as their own lawyer regularly had standby counsel write and argue motions in court.
The script also envisions a scenario in which an accused 9/11 plotter serving as his own lawyer becomes unruly, disruptive or disobedient rather than respect "the dignity of the courtroom." In such a case, the judge said he could deal with "obstructionist misconduct" by putting "physical restraints" on bin Attash or ejecting him from the court.
Bin Attash, for his part, has not been noticeably disruptive across years of pretrial proceedings. An amputee, he was brought to his May 5, 2012 arraignment in a Guantanamo prison restraint chair routinely used for forced-feeding of hunger strikers -- with guards carrying his prosthetic leg separately.