On Tuesday, Pohl said the feeds should not have been cut off, but he did not explain who censored the hearing or whether some invisible hand has the authority to do so.
There is a 40-second delay in the transmission of commission proceedings to prevent the disclosure of classified material. Pohl said no classified material was being discussed at the time the feed was shut down. He stressed that only the judge can close the courtroom and that he must uphold any decision to cut the feed.
Joanna Baltes, a Justice Department lawyer working on the prosecution team, said the “original classification authority” reviews the feeds. The authority that Baltes referred to almost certainly is the CIA, but it remains unclear whether agency personnel have a previously undisclosed ability to cut the feed. Pohl said defense attorneys should be able to interview government personnel who could explain what technology is used in the courtroom.
When a defense attorney asked Tuesday about who had the power to cut the feed summarily, the judge said the discussion was sliding into an area that should not be discussed in open court.
Attorneys for the defendants said they were concerned that privileged communications with their clients could be picked up by microphones monitored by unknown officials. The CIA declined to comment.
The issue arose during the second day of another round of pretrial motions in the trial of Khalid Sheik Mohammed, the professed mastermind of the Sept. 11 attacks, and four co-defendants.
Attorneys for the men told the judge Tuesday that they want to spend 48 continuous hours at the secret facility at Guantanamo where the government holds high-value detainees.
“I want to sleep there,” said Navy Cmdr. Walter Ruiz, who represents Saudi defendant Mustafa al-Hawsawi.
“You want to sleep with your client?” asked Pohl, semi-facetiously.
Ruiz said he could sleep in an adjoining cell.
The defense teams said they want to visit the classified facility, known as Camp 7, to better understand the personal histories and psychology of their clients, which could be relevant in any sentencing phase of the death penalty case.
The lawyers said they wanted to inspect the cells of the accused, the adjoining cells, the utility room, the recreational area, the media room, the medical facilities and other parts of the detention center, including the control room. And they said they want to be able to repeat the 48-hour sleepover every six months.
Camp 7 is nestled in an undisclosed part of the 45-square-mile base and protected by a special Marine unit known as Task Force Platinum. The unit, inside layers of security, is completely separate from the other camps at Guantanamo where a majority of the 166 detainees are housed.
Ruiz said he also wanted to visit other facilities at Guantanamo where his client has been held. He said he believes that facilities other than Camp 7 also have held high-value detainees — although the government has never acknowledged their existence.
Navy Lt. Cmdr. Kevin B. Bogucki, who is defending the Yemeni Ramzi Binalshibh, said the prolonged stay is necessary because some aspects of the men’s incarceration may not be immediately visible “to the naked eye.” Bogucki did not elaborate, presumably because of restrictions on discussing classified information. But the high-value detainees are thought to be under constant surveillance.
The government said in a written response that it would not oppose a one-time short visit to record “potentially relevant evidence related to conditions of confinement.” But the government said that each defense team should visit separately, that no more than two people could be part of each team and that while in the facility, the team could not speak to its clients or other detainees.
“We are being incredibly reasonable,” said Army Maj. Robert McGovern, a member of the prosecution team, who told the judge that the government’s conditions for the visit “were requested for security purposes.”
“We don’t think it’s appropriate that they are walking around the facility tapping people on the shoulders,” he said, adding that nothing in the law allows defense attorneys to “walk around in [the] shoes” of their clients.
Pohl said he will rule later on the defense request to visit Camp 7.