Lawyers for Alleged 9/11 Hijackers Claim Government Eavesdrops on Private Talks

Court officials won't ID agency monitoring all microphones.

In this pool photo of a sketch by courtroom artist Janet Hamlin and reviewed by the U.S. Department of Defense, the five Sept. 11 defendants, back row from left, Mustafa Ahmad al-Hawsawi, Ammar al Baluchi, Ramzi Binalshibh, Walid bin Attash, and Khalid Sheikh Mohammed, attend a hearing on pretrial motions in their death penalty case at the Guantanamo Bay U.S. Naval Base in Cuba, Monday, Jan. 28, 2013.
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GUANTANAMO BAY NAVAL BASE, Cuba—Defense lawyers for Guantanamo Bay prisoners charged with planning the Sept. 11 terror attacks claimed Sunday a secretive U.S. government organization is eavesdropping on confidential communications with their clients.

The system of microphones and recording devices used in legal proceedings on the naval base has come under legal scrutiny since a yet-unidentified government official killed the audio feed during a Jan. 28 hearing. The judge, Army Col. James Pohl, has since clarified that he is the only authority who may interrupt transmission of the hearings, the chief prosecutor told reporters Sunday.

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Even without the ability to kill the live feed, one of the defense attorneys claims Executive Branch agencies tasked with preventing leaks of classified information use their access to an uncensored feed to tap into private courtroom discussions between defendants and their lawyers.

These organizations, known as an Original Classifying Authority, could be intelligence services, says James Connell, attorney for Ammar al Baluchi, who is charged with helping finance the Sept. 11 hijackers.

"The OCA monitors an audio feed from the courtroom that includes attorney-client communications," Connell says.

Legal use of the phrase OCA may refer to a person or organization acting on behalf of an OCA, he says.

"People who use 'OCA' are not necessarily referring to an actual OCA," Connell says. "They use it to refer to a member of the intelligence community who represents someone who up the chain is an OCA."

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The presence of OCA monitors made headlines after the audio and video feeds from the courtroom were interrupted while a lawyer for Khalid Sheikh Mohammed, one of five defendants in the case along with Baluchi, was talking about a motion. Pohl was visibly surprised when the feed cut out, and ordered the agency to disconnect the equipment.

OCAs should not have access to the uncensored and highly detailed recordings used by court reporters to clarify transcripts, Connell says. They should be limited to the same feed broadcast throughout the legal center's closed-circuit system that only captures audible discussion in the courtroom.

"The judge is the chief security officer in that courtroom," says Army Brig. Gen. Mark Martins, chief prosecutor. "He will be the one who decides from within the courtroom whether the transmission is interrupted."

Martins would not divulge any information regarding the OCA. It is the responsibility of all officials present to help identify potential leaks of the hundreds of thousands of pieces of information the government has classified, he said, and bring it to the judge's attention within the 40-second buffer of the live feed.

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"Judges are not the ones that are best positioned to understand what a terrorist group may be doing, what is classified, what needs to be protected," he says. "They're not day-to-day in the stream of intelligence, they don't follow these developments. Those have to be executive branch officials."

"It doesn't mean [OCAs] are unaccountable," he adds. "Even though you don't know their names, they are accountable. But our system of government accounts for them in a different way."

Discussion over the distribution of court recordings will likely occupy a large part of Monday's scheduled proceedings.