Back on January 28, the proceedings of the military commission attempting to try Khalid Sheik Mohammed and co-conspirators were interrupted when an unknown entity outside the courtroom muted the audio feed carried out of the courtroom. The presiding judge was enraged and has held hearings to get to the bottom of the event. As Carol Rosenberg reported on January 31:
“This is the last time that will happen,” the judge said Thursday. “No third party can unilaterally cut off the broadcast.”
Pohl never once mentioned the CIA, the agency that controls information about what happened to alleged mastermind Mohammed, who agents waterboarded 183 times, and his four co-defendants. Instead, he referred to the “OCA” — short for the original classification authority — a generic term for any agency of the U.S. government that stamped a document or declared a program Top Secret.
“This is the last time that an OCA or any third party will be permitted to unilaterally decide if the broadcast should be suspended. The OCA, any OCA does not work for the commission and therefore has no independent decision-making authority on how these proceedings are to be conducted.”
Remarkably, the OCA censoring scandal has now spread to include the presence of hidden microphones the defense contends may have been used to eavesdrop on privileged attorney-client conversations, but I want to concentrate here on a remarkable coincidence where a second terrorism trial also was disrupted by a sudden, unexplained interruption in a transmission of the proceedings.
The current case centers on the nearly 80 year old, frail imam of South Florida’s oldest mosque, Hafiz Khan. He and a number of co-conspirators are accused of funneling money to the Pakistan Taliban:
One of Mr. Khan’s sons, Izhar Khan, 24, the imam of a mosque in Margate, Fla., sat near his father in the jury box. Both men appeared in court for the first time since their federal indictment was unsealed late last week. Neither man entered a plea.The indictment says the defendants conspired to provide material support to a conspiracy to murder, maim and kidnap people overseas, including planning to funnel at least $50,000 to the Pakistani Taliban.
The Pakistani Taliban, which the State Department has named a terrorist organization, took responsibility for a suicide attack in Pakistan on Friday that killed more than 80 cadets from a government paramilitary force.
Significant portions of the government’s case rest on recordings of intercepted phone calls:
According to the indictment, a tape-recorded phone conversation has Mr. Khan calling for an attack on the Pakistani Assembly similar to a suicide bombing of the Marriott Hotel in Islamabad, Pakistan, on Sept. 20, 2008.
Prosecutors say that in another phone conversation, Mr. Khan “declared his wish that God kill 50,000” American soldiers.
Khan’s defense team wanted testimony from a number of people in Pakistan, but they will not come to the US to testify in the Miami trail. Several motions were submitted by the defense and the government on just how testimony could be obtained from these witnesses. The defense wanted to depose the witnesses in Pakistan via videoconferencing, but the government fought that request. The government embarrassed itself a few times in these filings, especially when it argued that the defense had not indicated what language would be used for the depositions and so the government might not have the proper translators present. Further, the government tried to argue that the defense had not adequately shown why the witnesses did not want to come to the US.
In ruling on these many motions (pdf), the judge cut through the government’s arguments very cleanly, noting that the government had recorded these very witnesses and cited them in its indictment, so the language they speak is known to the government. Further, the witnesses are co-conspirators in the indictment and so they fear arrest if they come to the US: Continue reading
Carol Rosenberg in the Miami Herald and Peter Finn in the Washington Post recount a very strange sequence of events during yesterday’s proceedings in the Guantanamo military commission that is attempting once again to “try” the group of five prisoners that includes Khalid Sheik Mohammed for their conspiracy in bringing about the 9/11 attacks. As Rosenberg recounts, the judge was enraged when a portion of the proceedings was censored by someone outside the courtroom. The judge appeared to have no knowledge beforehand that anyone besides himself or his security officer could control the censoring process:
Someone else besides the judge and security officer sitting inside the maximum-security court here can impose censorship on what the public can see and hear at the Sept. 11 trial, it was disclosed Monday
The role of an outside censor became clear when the audio turned to white noise during a discussion of a motion about the CIA’s black sites.
Confusion ensued. A military escort advised reporters that the episode was a glitch, a technical error. A few minutes later, the public was once again allowed to listen into the proceedings and Army Col. James Pohl, the judge, made clear that neither he nor his security officer was responsible for the censorship episode.
“If some external body is turning the commission off based on their own views of what things ought to be, with no reasonable explanation,” the judge announced, “then we are going to have a little meeting about who turns that light on or off.”
Finn described the event as the action of an “invisible hand”:
Who controls what the public and reporters can see and hear at the military commissions at Guantanamo Bay, Cuba? Is there an invisible hand, unknown to even the military judge, that can switch off audio and video feeds?
Finn gives more details of the proceedings as the button was pushed:
David Nevin, one of Mohammed’s civilian attorneys, was discussing a defense motion to preserve any evidence from the secret overseas prisons where the defendants were held by the CIA. The motion had been declassified, but Nevin had barely gotten a sentence out when the audio feed to the media centers on base and at Fort Meade was smothered in white noise. Then the video of the courtroom was cut.
When the feeds were restored several minutes later, Judge James Pohl, an Army colonel, seemed perplexed as to not only why Nevin was censored but by whom. Pohl said he did not cut off the feed, and it did not appear that the court security officer who sits beside him did, either.
Rosenberg informs us that the judge was very upset:
But to court observer Phyllis Rodriguez, the judge appeared “furious” and “livid” when he realized that that outsiders had their finger on the censorship switch of his courtroom.
“It’s a ‘whoa moment’ for the court,” said Human Rights Watch observer Laura Pitter. “Even the judge doesn’t know that someone else has control over the censorship button?”
Both articles point to DOJ attorney Joanna Baltes offering to explain to Pohl in secret session how the censorship came about and it appears that Pohl intends to disclose who pushed the button if, as Finn states, “what happened could be explained in public”.
The event also upset the attorneys. As Finn reports, it prompted further concerns:
Nevin and other defense attorneys said they wanted to know whether there was some mysterious entity monitoring the proceedings — and whether that entity might be listening to communications between the lawyers and their clients.
Just who is responsible for this censoring? And, as Nevin speculates, is this same “invisible hand” also an “invisible ear” listening to his discussions with his clients?
This episode is yet another example of the folly of not trying these defendants in federal court. The military commission rules are an ever-changing mess where nobody, now apparently including the presiding judge, knows what is appropriate and what is not or even who determines what constitutes secret information. In a federal court, there never is a question that the judge controls all aspects of the proceedings.
Iran’s PressTV was highly entertained by the episode, citing both the “invisible hand” phrase and putting “open” into scare quotes in their lede paragraph about the session and its unexpected censoring:
During defense arguments in an “open” session of the US military trial of Guantanamo inmates, an ‘invisible hand’ suddenly cut off the audio-visual feed to the media, even mystifying the military judge.
It would appear that PressTV was laughing uncontrollably over this, as they attributed quotes from Finn’s Washington Post article to the New York Times, which, at the time of this writing, has not reported on the event.
At any rate, I will provide an update if an explanation from Pohl is forthcoming. That is, if I’m not too busy laughing at the irony of Iran being able to ridicule the US about censorship less than 24 hours after arresting a number of journalists for “consorting with hostile foreign news media”.
Update: The short answer to the question in the headline appears to be “no”. From tweets by Carol Rosenberg “Pohl on who controls button: “We’re getting to a line here of what’s public and what’s security. … I’m not sure what witnesses to call.”” and “Judge Pohl made clear that whoever hit the censorship button yesterday should not have, but did not clarify or describe who did it.” and also “#KSM attorney Nevin is asking for “courtesy” of understanding who’s listening in on hearings. Private talks between lawyer and client too.”
Update 2: More tweets from Carol Rosenberg lift the veil just a bit: “Now the Justice Dept secrecy expert, Joanna Baltes, has given judge and defense lawyers a piece of paper that says OCA reviews the feed.” and “OCA= Original Classification Authority, as in for example the CIA on interrogation techniques and black site program.”
They’re exploiting the soldier for their own propaganda.
The Taliban are using it as a propaganda tool.
Then read this passage from George Tenet’s book, co-written with Bill Harlow:
By the next morning, Sunday, March 2, US media outlets were carrying news of the [KSM] capture as well. Some of the stories described the worldly KSM as an al-Qa’ida James Bond. To illustrate the point, they showed photos of him with a full beard wearing what were supposedly his traditional robes. It didn’t take long for Marty to phone me and relay his disgust at some of the coverage.
“Boss,” he said, “this ain’t right. The media are making this bum look like a hero. That ain’t right. You should see the way this bird looked when we took him down. I want to show the world what terrorists look like!”
Turns out, our officers on the scene in Rawalpindi had snapped and sent back some digital photos of KSM just after his capture, so I suggested that Marty call the Agency spokesman, Bill Harlow, and work something out. Within an hour, Harlow was in CTC looking over a selection of photos that made KSM look nothing like James Bond. Together they picked out the most evocative photo. Then Harlow, armed with a digital copy, called up a reporter at the Associated Press and told him, “I’m about to make your day.” Asking only that the AP not reveal where they got the picture, he released the image of a stunned, disheveled, scroungy KSM wearing a ratty T-shirt. The photo became one of the iconic images of the war on terrorism. If we could have copyrighted it, we might have funded CTC for a year on the profits. Foreign intelligence services later told us that the single best thing we ever did was release that photo. It sent a message more eloquently than ten thousand words ever could that the life of a terrorist on the run is anything but glamorous.
I hope to hell that soldier comes home safely and I’m sorry the Taliban used his image for propaganda purposes.