The United States was capable of eavesdropping on what were thought to be private conversations in court between the suspected plotters of 9/11 and their lawyers, a witness testified Tuesday.
Maurice Elkins, director of courtroom technology at the US Navy base at Guantanamo Bay on the southeastern tip of Cuba, said 32 microphones had monitored such legal hearings, until changes were made on Monday.
Even whispered conversations, spoken in “a very, very low tone,” could be picked up on an unfiltered audio feed being handled by a government agency, he said, confirming defense lawyers’ worst fears.
Their contention that client-attorney privilege could have been breached by such arrangements dominated the second day of the latest pre-trial hearing.
Elkins’s admission came during questioning from James Connell, the attorney for one of the five men accused of orchestrating the September 11 attacks that killed nearly 3,000 people and led to US-backed wars in Afghanistan and Iraq.
The unfiltered circuit was controlled by computer software that recorded everything said in court, Elkins said, unlike the “filtered circuit” relied on by journalists who cover the proceedings from behind a glass screen.
Censorship and how proceedings against the five men accused of the airliner plot have been conducted have been a focus of recent hearings.
A military judge overseeing the case ruled last month that the US government had censored a discussion regarding secret CIA prisons, preventing it from being heard outside the courtroom, and ordered such censorship to stop.
The suspected plotters of the attacks against the Twin Towers and the Pentagon, and involving another airliner that crashed in Pennsylvania face the death penalty if convicted.
Three of the accused heard Tuesday’s legal arguments, including Khalid Sheikh Mohamed, the alleged mastermind of 9/11 who with the judge’s permission was allowed to wear a camouflage jacket in the courtroom.
The government maintains that although the many microphones circulated around the court were capable of capturing all sound, there was no capability of isolating what was being said between defense lawyers and the accused.
Prosecutor Clayton Trivett likened it to a restaurant where many conversations are going on at the same time.
But David Nevin, Mohamed’s defense lawyer, appeared skeptical, noting that “these very sensitive microphones can pick us up from a variety of locations, correct?”
“You don’t know what the OCA is doing with the sound that they receive,” Nevin said to Elkins, referring to the Office of Court Administration, which handles the recordings.
This week’s pre-trial hearing at Guantanamo is being viewed by reporters via a television link at Fort Meade, a military base in Maryland, 30 miles (48 kilometers) from the US capital.
On Monday, following Nevin’s objections, Judge James Pohl ordered that the microphones used by legal counsel use a “push to talk switch,” instead of the “push to mute switch” used previously to prevent inappropriate listening in.
A second defense lawyer, Walter Ruiz, acting for Mustafa al-Hawsawi, an alleged financier of the September 11 attacks, also questioned the uses to which the OCA could put such recordings.
“How do you know what they’re doing?” Ruiz asked Elkins.
“I do not know what anybody’s capability is,” Elkins replied.
The government’s chief prosecutor, General Mark Martins, said on Monday that no inappropriate recording of conversations was taking place.
“I can say unequivocally that no entity of the United States government is listening to, monitoring or recording communications between the five accused and their counsel at any location,” Martins said in a statement.