By Jane Sutton
MIAMI, Aug 13 (Reuters) – There is no evidence that anyone
listened in to confidential meetings between a Guantanamo war
crimes defendant and his lawyer, at least during the last two
years, a U.S. military judge said in a ruling made public on
Tuesday.
Therefore, the judge ruled, there is no need to issue an
order prohibiting future monitoring of attorney-client meetings.
The ruling came in the death penalty case against alleged al
Qaeda chieftain Abd al Rahim al Nashiri, a Saudi prisoner
accused of orchestrating the bombing of the USS Cole off Yemen
in 2000. Seventeen U.S. sailors were killed when suicide bombers
detonated a boat full of explosives against the warship’s hull.
In a February hearing at the Guantanamo Bay U.S. Naval Base
in Cuba, Nashiri’s lawyers asked that pretrial proceedings be
halted until they could determine whether military or
intelligence agents were eavesdropping on supposedly private
meetings with the defendant.
The request followed revelations that what appeared to be
smoke detectors in the meeting rooms were actually microphones,
and that intelligence agents outside the courtroom had cut the
public audio feed in the mistaken belief that secrets were being
discussed at another hearing. The microphones and the outside
kill switch have since been disabled, according to court
testimony.
Prosecutors and a defense technical expert subsequently
searched for records of any monitoring and found none, the
ruling said.
At an evidentiary hearing in June, the top legal adviser for
the task force that runs the prison and the Army officer who
acts as the warden both testified under oath that there had been
no monitoring of attorney-client meetings during their tenure.
The judge, Army Colonel James Pohl, said their testimony was
convincing and no evidence had been found to contradict it.
“While neither officer could possibly testify to what may
have happened for the prior 10 years of detention at Guantanamo
Bay, their testimony established beyond the required evidentiary
threshold that monitoring has not occurred” since the current
charges were filed against Nashiri in September 2011, Pohl
wrote.
The judge said the confidentiality of attorney-client
communications was sacrosanct under U.S. law and that any
unlawful invasion of those conversations by any government
agency “would be viewed very dimly.”
But without evidence of past monitoring, the judge said, it
would be superfluous and “a judicial overreach” to issue an
order prohibiting future monitoring.
Nashiri’s lawyers could not immediately be reached for
comment on the ruling, which was dated Aug. 5 and released
publicly on Tuesday.
(Editing by Mohammad Zargham)
