January 31, 2013

GUANTANAMO BAY NAVY BASE, Cuba -- The military judge presiding at the Sept. 11 trial Thursday ordered the government to unplug any outside censors who can reach into his courtroom and silence the war crimes tribunal.

Only a court security officer sitting in court, at the judge’s elbow, has the authority to hit a mute button on the proceedings if there’s a suspicion that national security information could be spilled, Judge James L. Pohl announced.

At issue was a mysterious episode Monday when the sound to spectators was suddenly replaced by white noise in court after 9/11 mastermind Khalid Sheik Mohammed’s attorney David Nevin said the word “secret.”

Nobody inside court did it. The judge erupted in anger, and appeared surprised that “some external body” had the power to prevent the public from listening to the proceedings — which are broadcast in the spectator’s gallery on a 40-second delay.

“This is the last time that will happen,” the judge said Thursday. “No third party can unilaterally cut off the broadcast.”

The court was just beginning to tackle a defense request that the judge issue a protective order on whatever remnants exist of the CIA’s secret overseas prison network. President Barack Obama ordered those facilities closed on taking office.

Defense lawyers say the five men now charged as the alleged plotters of the Sept. 11, 2001, hijackings were tortured at those places. The chief prosecutor, Army Brig. Gen. Mark Martins, says no evidence obtained other than voluntarily will be used at their death-penalty trial.

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.”

“An OCA does not work for the commission,” he said, using the Pentagon term for the war court, “and has no independent decision-making authority on how these proceedings are to be conducted.” On Tuesday, civilian 9/11 prosecutor Joanna Baltes cast the role of the OCA as an approved extension of the military commissions.

“The OCA, original classification authority, reviews closed-circuit feed of the proceedings to conduct a classification review to ensure that classified information is not inadvertently disclosed,” she said in a note to the judge. “When the parties do press the mute button on the microphone, no audio is transmitted through the closed feed.”

It was not immediately clear if the judge would order the prosecution to present a witness to swear that outside censor buttons had been unplugged. Defense lawyers asked the judge to have the war crimes prosecutor certify it, once done.

In another major decision, the judge ordered the Pentagon’s most senior official responsible for the war court, retired Vice Adm. Bruce MacDonald, to testify in a pre-trial hearing the week of Feb. 11. Pentagon prosecutors had opposed the testimony of MacDonald, whose formal title is “convening authority” and whose responsibility includes reviewing charges sheets and approving prosecutions.