Listening Devices Disguised as Smoke Detectors

Not What America is About – Meeting with Defense Teams

“This is Not What America is About” was the consistent theme of the nearly two-hour session NGO Observers had with defense teams for three of the 9/11 defendants: Mr. Mustafa Ahmed Al Hawsawi, Mr. Mubarak Bin ‘Attash, and Mr. Ramzi Bin Al Shibh. Held in the NGO Lounge, a one-window room carved out of metal hangar and filled with mis-matched 1980’s college dorm and office furniture, we listened as the legal teams told of FBI spying on privileged attorney-client meetings with the use of listening devices designed to look like smoke detectors, FBI attempts to use members of the legal teams as informants, Joint-Task Force seizure and review of attorney-client correspondence, CIA control of the courtroom that lead to monitoring of conversation at the defense tables (ironically the $12 million courtroom was designed to prevent this kind of activity), and trial delay tactics. In short, as James Harrington, Learned Counsel for Ramzi Bin Al Shibh, said, “this is not what America is about.”

Judge Pohl

Questions and answers were traded with the defense teams about the Military Commission and the process itself. Unlike the established U.S. federal court system, the Military Commission is a new process and every issue is subject to briefing and arguments; and a ruling by Colonel Judge James L. Pohl. James Harrington described the situation as such, it is a “process set up for a particular goal, when rules don’t achieve [that] goal, the rules are changed.” Despite evidence that terrorists can successfully be tried in Federal courts (e.g., Sulieman Abu Ghaith, Osama bin Laden’s son-in-law) the Military Commission process appears at this point in time to be what we stuck with.

Defense Counsel Wearing Hijab

Learned Counsel Cheryl Bormann, who represents Mubarak Bin ‘Attash, also noted the disparate resources made available to the defense teams. For example, her team has not been assigned an investigator. Ms. Bormann wears a hijab during meetings with her client and court proceedings. She explained that she wears hijab to establish rapport with her client. There was a definite undercurrent of a difference of opinion among the defense teams as to whether the wearing of the hijab will create an unfavorable impact with the judge and jury (panel) when and if the 9/11 case ever gets to trial. (more…)

The “NGO Lounge” at GITMO where NGO’s have a place to work (without Wi Fi though)

More on the NGO meeting with the Chief Prosecutor General Martins

To conclude a summary of our meeting with General Martins, Chief Prosecutor for the Military Commissions, here are several other topics we discussed in our meeting:

No Miranda warnings required

• One of the primary differences with the Military Commissions and traditional Article III Courts are the different standards regarding Miranda Rights and the admission of hearsay evidence. Generally the standards for admission of hearsay evidence and evidence gathered without first issuing a Miranda warning is less strict. Gen. Martins stressed that due to the nature of the environment where the evidence is collected (often in a theatre of war) there are not always trained law enforcement personnel available and therefore the standard should be different than in a traditional civilian law enforcement/Court setting. That being said, he reiterated that even though the standards may be “lower” there is still a threshold that must be met and not just anything can be admitted. There is still a need for the prosecution to prove that the evidence being proffered is reliable through a “totally of the circumstances” analysis and the defense has an opportunity to counter that through cross examination etc. which is all set forth in the MCA of 2009.

Timetable for al Nashiri trial

• One specific question from the group was when he thought the actual trial would begin for Al-Nashiri. Gen. Martins indicated that he anticipated that at the current pace and posture of the case, the trial could begin in the fall of 2015.

Evidence generated from “enhanced interrogation”?

• In addition, he also noted that for the government’s case it will use no testimony generated from any enhanced interrogation procedures.

Declassifying information

• Gen. Martins also indicated that the government is under an obligation to declassify as much information as possible under the MCROE 505 and that they have been striving to meet that obligation. He also pointed to the volume of materials and direct resources and documents from the proceedings that are available for anyone to ready and review on the internet, and that they strive to make the entire process extremely open and public as the MCA requires.

Listening device disguised as smoke detector in attorney / client meeting room; FBI investigating defense team members

Some of the aL-Nashiri hearing NGO Observers at a table outside our tents. They stopped letting NGOs have wifi access at this location.

• In response to a question from the group, Gen. Martins discussed some of the particularly troublesome issue that some observers of the process have mentioned concerning the revelations of a listening device concealed in a smoke detector in a room where attorneys met and conferred with their clients at GITMO, as well as the FBI interviewing members of the defense team and having nondisclosure statements about the interviews so other members of the defense team would not know of the interviews occurring. The FBI issue is currently being litigated in the 911 case and Gen. Martins has walled himself off from that case so he wasn’t able to comment very much on that other to say that it was a legitimate issue from both sides and the judge is currently hearing arguments on it. Regarding the smoke detector issue, he indicated that the facts presented showed that the room was a multi-purpose room used for other detainee procedures where surveillance was necessary and the listening devices were not operative during the attorney client meetings.

ISIS / ISIL — Captured taken to GTMO?

• An additional question raised by the group concerned the current conflict with ISIS/ISIL in the middle-east and whether or not in the event any of their members were captured, would they potentially be transferred to GITMO to face a military commission. The General responded that it is an open question (and theoretical at this point) on how that would be handled. There are several issues associated with that question that all have to do with the limited jurisdiction of the military commissions based on the MCA of 2009. You would need to explore if they are affiliated with Al Qaeda, are they foreign nationals, are they unlawful enemy belligerents etc.

Future Updates

I will also be posting future updates from the subsequent day’s activities of this trip.