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Last week, the Washington Post reported that the audio and video feeds at the Guantanamo trial of Khalid Sheikh Mohammed (KSM) mysteriously went out as the defense was presenting a motion, to the surprise of even the judge.

Today we learn that the government has been eavesdropping on attorney-client privileged communications through a microphone disguised as a smoke detector.

So much for trying to bring legitimacy to the umpteenth iteration of Gitmo military commissions. Infractions like those above would normally result in a mistrial. But this is the black hole otherwise known as Gitmo, where even when we try to provide a modicum of due process, we still cheat.

Navy Capt. Thomas Welsh, the senior legal adviser to the commander of the Gitmo prison, admitted in testimony that the government placed a hidden microphone inside the aptly-named "Echo 2," an attorney-client meeting room for "high-value detainees."

Welsh said that he was assured the microphone was not used to monitor the private conversations that prisoners have with their lawyers.  (This defies credulity. I'm not sure what else a hidden microphone in an attorney-client complex would be used for.) But then he contradicted himself by saying that he learned more than a year ago that authorities could audio monitor when he saw a law enforcement agent listening while a prisoner, his lawyer and prosecutors discussed a possible plea deal to war crimes charges

To add insult to injury, prosecutor Clay Trivett suggested that defense lawyers could have examined the listening device closely and determined it was not a smoke detector.

This is not the first time that government authorities have been caught monitoring private conversations between Gitmo detainees and their lawyers in violation of the attorney-client privilege. But it is more evidence that the New York Times has an impeccable Brig. Gen. Mark Martins--chief prosecutor of the military commissions system who was handpicked to reboot the tribunals and give them legitimacy before the eyes of the world is colossally failing. (Earlier he said there was no evidence of eavesdropping.)

The evidentiary attorney-client privilege is a fundamental principle deeply ingrained in the attorney-client relationship because it contributes to the trust that is the hallmark of the relationship, and encourages clients to communicate freely with their lawyers so their lawyers can effectively represent them. Lawyers have a duty to maintain both their clients' privileged communications and private confidences. But what if it is the U.S. government, and not the defense lawyer, who is violating this inviolate relationship? In 2002, I resigned as the Justice Department's Ethics Advisor and blew the whistle on government misconduct in the case of "American Taliban" John Walker Lindh. (For this, I ended up under criminal investigation, placed on the "No-Fly List," and referred to the state bars in which I'm licensed as an attorney--still pending 10 years later.) I'm horrified, but not surprised, to learn that, more than a decade later, the government is still taking ethical shortcuts not to achieve justice, but to win at all costs.

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Comment Preferences

    •  Actually, it is (7+ / 0-)

      They already have this taken care of. These guys are never going to get out of prison.  That is already assured.  The government has created entirely new courts to handle these defendants.  It's already only fig leaf of the rule of law.  They hardly ever even let them see these lawyers.  And when they do, they bug the room.  Why?  


      "Justice is a commodity"

      by joanneleon on Wed Feb 13, 2013 at 06:38:23 AM PST

      [ Parent ]

      •  No, really when you think about it (7+ / 0-)

        we have already lost the major portion of what America was supposed to be. Further incursions of people's liberty are just the icing on the cake to people who are already looking for that next invasion.

        That is why time after time we gasp as the treachery gets wider and deeper. Most of us are on the other side of that moral divide.

        American Television is a vast sea of stupid. -xxdr zombiexx

        by glitterscale on Wed Feb 13, 2013 at 07:14:59 AM PST

        [ Parent ]

        •  This is what happens when we allow our (0+ / 0-)

          Constitution to be reinterpreted in order to change the notion of rights to be held by all persons, to rights only to be held by some persons,  some citizens only, not these or not those.And why I object to converting the term for those accused of a mahjor crime, your friend and mine the accused felons, to be changed when one starts officially calling them not accused felons, but terrorists. No rights now at all for terrorists, if of course the ones who decide this can figure out who is a terrorist and who is not.  It is only a matter of time if this is allowed for the same procedure to come to your local jail or holding facility, when budgets allow.

          Words matter.

    •  Yeah, c'mon, there is not a SINGLE thing (9+ / 0-)

      legal, ethical, or legitimate about Guantanamo.   It is a stain, like the people who run it, on America.

      There can be no legitimate "justice" that comes out of any of these trials, so why should anyone be "surprised" at how unethical the dog and pony shows are being conducted?

      Unless they lead to War Crimes proceedings against ALL the people who have participated in the kidnapping, torture, and murder machine, known as Guantanamo and our Greater War on Terror.  An epic monument to American racism, xenophobia, mindless revenge, and barbaric sadism.

  •  Well, strictly speaking ... (3+ / 0-)

    listening in on the accused, his lawyer, and the prosecutor is not the same as listening in on attorney/client communications.

    But I agree it stretches credulity to think they aren't using these microphones as you say.  Else why would the microphone need to be concealed?  They could simply set up an overt microphone for the purpose of any legitimate recording and remove it when any attorney/client conference is taking place.

    “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

    by jrooth on Wed Feb 13, 2013 at 06:16:37 AM PST

  •  ...shocking... no really. (9+ / 0-)

    I no longer think I have the capability to be surprised by the actions of the government in these cases.

    I don't blame Christians. I blame Stupid. Which sadly is a much more popular religion these days.

    by detroitmechworks on Wed Feb 13, 2013 at 06:18:44 AM PST

  •  I just read about this (18+ / 0-)

    and of course I was waiting for the defense attorneys to get an answer to their question about whether or not their communications with their clients were bugged.

    Infractions like those above would normally result in a mistrial. But this is the black hole otherwise known as Gitmo, where even when we try to provide a modicum of due process, we still cheat.
    Here is what I find to be mind blowing.  My understanding is that even if these guys were, for some very unlikely reason, found not guilty, they'd never be let go.

    The rules for these tribunals are being made up as they go along, essentially, and our government has made sure that the government can't lose.  The deck is stacked. Yes, they've made things more difficult for themselves by torturing the detainees, but even so, the trials go on and there is no chance in hell that they will go free.

    But even with all of the extraordinary power and advantage they feel that they have to illegally listen in on private conversations between the defendants and their lawyers, even though those defendants have had an incredibly small amount of time to even consult with those lawyers.  

    What is it with this paranoia and complete disregard for any kind of law and ethics?


    "Justice is a commodity"

    by joanneleon on Wed Feb 13, 2013 at 06:35:30 AM PST

  •  what happened to "justice" (9+ / 0-)

    is there anything sacred anymore?

    not the vote - the USA is the only major country in the world who has outsourced voting to corporations. Secret voting machines, secret software, easily hacked systems which has been demonstrated over and over, ownership of voting machines and voting machine companies by politicians, insert of "experimental" code into machines without an audit, politicians not taking a strong stand that would have forced a direct recount (e.g., Gore in 2000 in FL and Kerry in 2004 in Ohio)

    and even being able to vote is no longer sacred as barriers are thrown up all over the place.

    the voting comments are off topic for this column, but something that I thought was attorney - client communications

    not to governments who want to keep their secrets at all costs, even at the expense of the rule of law

  •  Authorities (7+ / 0-)

    Has anyone identified the "authorities" yet?  Are the defense attorneys entitled to know who is on the other side of the hidden microphones?  

    When the judge got an answer about who had cut off the audio and video feed, they were given an answer about a certain classification authority organization who also had control over the censor button.  But the purpose of the microphones in the Echo 2 rooms would not be a censoring device, right?  So is it likely that the same OCA(?) organization would have access to the feeds from the microphones in that room?  Seems to me that the answer would be different about who has control over these microphones than the ones in the courtroom.

    But don't the defense attorneys have the right to know, specifically, who would have access to those microphones?


    "Justice is a commodity"

    by joanneleon on Wed Feb 13, 2013 at 06:48:08 AM PST

    •  It's pretty unclear. (4+ / 0-)

      I would be inclined to think it's some intelligence agency - most likely military intelligence - who put in and monitored these microphones.  But the prosecutor described the person he witnessed monitoring a conversation as "a law enforcement agent."  That muddies the waters considerably.

      “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

      by jrooth on Wed Feb 13, 2013 at 07:58:01 AM PST

      [ Parent ]

  •  I'd be willing to bet that (5+ / 0-)

    client attorney privilege was also breached in US whistle blower trials.

    American Television is a vast sea of stupid. -xxdr zombiexx

    by glitterscale on Wed Feb 13, 2013 at 07:18:39 AM PST

  •  The offshoring of unconstitutional activities... (10+ / 0-)

    ...jobs aren't the only thing leaving America. Brings new definition to the term: N.I.M.B.Y.

    "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

    by bobswern on Wed Feb 13, 2013 at 07:20:23 AM PST

  •  Jesselyn, I appreciate your passion about this. (1+ / 0-)
    Recommended by:
    The Jester

    And the merest hint of acceptance of these strategies around here is the kiss of death.
    But, in a week when the most imperial high muckety muck of North Korea has announced that they have created a compact nuclear weapon ... I do NOT give a shit about the "rights" of anyone ... ANYONE ... who lives by the creed that America must die.
    That, I'm afraid, will be the attitude of a large majority of Americans for now and forever. Our president has been focused on nuclear weapons for years. I don't think he's an evil man using evil weapons, whether hidden microphones or drones ... I believe absolutely that he understands the danger we are in.
    This is not some Bushian fear mongering. It's a natural extension of the rapidly changing technology ... the information available to create such horror ... the lack of protections for those weapons and the materials to make those weapons ... the huge piles of cash that can be put on the table by people who have a vested interest in seeing an American city go up in flames.
    I do not see a slippery slope. I'm actually sick and tired of the slippery slope arguments that make the right and left look so damn foolish.
    Do background checks and you'll soon be taking my guns.
    Allow chained CPI and eventually they'll do away with medicare.
    Roe v Wade means that abortion for birth control and gender choice will be the norm.
    Jail a terrorist without due process means they'll be coming for me next.
    I don't believe any of that ... because i swear to god I can't think of a single slippery slope argument that's EVER come true. Can you?

    •  So the things that make America what it is (8+ / 0-)

      (supposed to be) don't really matter because every three years the North Koreans reprocess enough Pu239 to make a pony bomb or two?

      /facepalm

      Happy little moron, Lucky little man.
      I wish I was a moron, MY GOD, Perhaps I am!
      —Spike Milligan

      by polecat on Wed Feb 13, 2013 at 07:42:51 AM PST

      [ Parent ]

    •  Starving grandma doesn't matter because a country (3+ / 0-)
      Recommended by:
      joanneleon, joe shikspack, aliasalias

      (a very TINY country) that has to use nuclear blackmail just to get enough food from the West to survive has (and sets off) on a fairly predictable schedule really, really tiny nuclear bombs.

      /headdesk (because /facepalm isn't enough)

      Happy little moron, Lucky little man.
      I wish I was a moron, MY GOD, Perhaps I am!
      —Spike Milligan

      by polecat on Wed Feb 13, 2013 at 07:45:47 AM PST

      [ Parent ]

      •  That's one example. Used it because of the timing (0+ / 0-)

        How many actualy suitcase bombs do you suppose exist? I'm guessing ... many. So, you are absolutely certain that Russia has adequate security measures in place to protect them. Hell, how about the US? In another thread, someone used the story about Pakistan transporting THEIR nuclear devices around in cargo vans on the streets as an argument AGAINST my opinion. Not sure how that works. Can you tell me with absolute certainty that a nuclear device can NOT be procured and set off in an American city? I'm guessing you can't. Can you imagine the effect that would have on the American psyche?
        I don't imagine hoards of muslims crossing the oceans and attacking American cites, like it seemed many fox "news" viewers did a decade ago. I don't imagine a teenager plotting to blow up a marketplace in Islamibad can get his hands on a nuclear weapon. But ... when the leading terrorist in the world also happened to be a member of a very wealthy oil family who were just shipped out of the country because we didn't want to cause them emberassment ... I just know that the underlying danger of a device being bought or created ... even right under our noses ... is very real.
        I don't want to bet an American city on the hope that a crazy billionaire wouldn't do it because it would upset his portfolio.

        •  I grew up during the cold war. Give it a f'ing (4+ / 0-)

          rest.  The dangers are no more now than they were then -- actually considerably less.

          And it's not that easy to make a suitcase nuke.  It takes a LOT of research to make the right explosives and reflectors and to get the shape (and manufacturing tolerances) just right.

          So chill the f*ck out.  A suitcase nuke is not going to come from NK in my lifetime or yours.  And the Russian danger is less than it was.  Obama had a lot to do with buying and using up the nuclear material that the Russians had.

          /oy vey

          Happy little moron, Lucky little man.
          I wish I was a moron, MY GOD, Perhaps I am!
          —Spike Milligan

          by polecat on Wed Feb 13, 2013 at 08:41:01 AM PST

          [ Parent ]

          •  yeah I remember the 'duck and cover' drills (1+ / 0-)
            Recommended by:
            polecat

            and if anyone is concerned about nukes and a war mentality they need to take a loooong look at the USA and Israel.
            They can also think about the fact only ONE Country has ever used them on another Country and that would be the USA.

            without the ants the rainforest dies

            by aliasalias on Wed Feb 13, 2013 at 12:42:03 PM PST

            [ Parent ]

        •  be very afraid of your FURNITURE! (0+ / 0-)

          http://www.indecisionforever.com/...

          Earlier this week we covered a U.S. government study reporting on the threat of killer furniture. According to government statistics, roughly as many Americans are killed annually by unstable furniture and falling televisions as are killed in terrorist attacks. In honor of the annual National Counter Terrorism Center report, here are 10 more things you can be terrified of…

          1. 16 oz sodas – At least 26,000 deaths per year are attributed directly to obesity. Way more purple hearts issued in the obesity wars than in the anti-terror ones.

          2. The Transportation Security Administration -  The increased inconvenience of going through airport security increases automobile deaths due to people deciding to drive instead of fly by 500 per year. On the bright side, a TSA security check is the most action many soda-guzzling Americans are ever going to get.

          3. Your Bathroom – Nearly 9,000 bathroom-related fatalities were reported in 1999.

          4. Texting – Responsible for 6,000 deaths annually. Not to mention the danger of being in Anthony Weiner's address book.

          5. Weird Sex Stuff – "Estimates of the mortality rate of autoerotic asphyxia range from 250 to 1,000 deaths per year in the United States."

          6. Alcohol and Tobacco – At least weed is still safe.

          7. The weather -  According to the Nation Weather Service 5,009

          I'll add THIS fact the Harvard Medical Center released a report last year that said app. 50,000 people die each year in the USA from lack of access to medical care(not insurance policies, as many had those).

          without the ants the rainforest dies

          by aliasalias on Wed Feb 13, 2013 at 12:39:33 PM PST

          [ Parent ]

    •  Ahem. (5+ / 0-)
      This is not some Bushian fear mongering.
      Yes it is, actually.

      “What’s the use of having developed a science well enough to make predictions if, in the end, all we’re willing to do is stand around and wait for them to come true?” - Sherwood Rowland

      by jrooth on Wed Feb 13, 2013 at 08:01:20 AM PST

      [ Parent ]

  •  I remember when the Gainesville 8 (6+ / 0-)

    trial (1974) came to a screeching halt when defense attys found "bugs" in the office where they were conferring with their clients.  A good mark in how far we've come since then.

  •  Next step - Setting Up a Department of Pre-Crime (2+ / 0-)
    Recommended by:
    joe shikspack, aliasalias

    Setting Up a Department of Pre-Crime, Part One: Why Are We Doing This? by emptywheel

    Have you been following her over the years?

    She did a real time blog of the Scooter Libby trial from the court room which was published in a book. Her Ph.D. degree is in English, but she has done exceptional legal and civil rights work for many years. She dig and digs to get the stories.

    Her name is Marcy Wheeler and she blogs at emptywheel.net

    I’m going to have a series of posts on the proposed FISA Drone (and/or Targeted Killing) Court, starting with a description of why I think there’s movement to do this now.
    There are, as I see it, three different motivations among those now backing a FISA Drone (and/or Targeted Killing) Court.
    First, there’s Dianne Feinstein.....
    Then there’s John Brennan,
    And then, finally, there’s Angus King
    http://www.emptywheel.net/...
    •  Obama's Star Chamber (0+ / 0-)
      Department of Pre-Crime, Part Two: The FISA Court Is Broken
      Posted on February 13, 2013  by emptywheel
      http://www.emptywheel.net/...
      Yet after the FISA Amendments Act, that’s not what happens. Rather, judges are deprived of the ability to do more than review the government’s certifications about targeting and minimization. Once a judge has done so, however, the government can not only bulk collect telecommunications involving someone overseas, but it can later search on those telecommunications to get to the US person’s side of the conversation, apparently without court review on the back side.

      Effectively, discretion over this massive system has collapsed back inside the Executive Branch.

      And all that’s before the government’s use of the secret law that Mark Udall and Ron Wyden keep complaining about, which probably involves — in part — the bulk collection of geolocation information from cell phones. It’s also before the government has interpreted the word “relevance” to justify other massive collection programs (at a minimum, of things like hydrogen peroxide and acetone purchases) involving US persons.

      In short, the FISA Court has become a venue not for judges to exercise individualized discretion about probable cause. Rather, it has become the venue in which the government uses the secrecy offered to develop expansive legal interpretations to support vast new spying programs it won’t even tell Americans about. Not only the promise of individualized judicial discretion has been eliminated, so has the very premise that American should know what laws they are subject to.

      Particularly given that a key problem with the targeted killing program (and the NDAA detention authorities, for which the Administration’s legal logic is undoubtedly the same) is that the Administration never has to clearly lay out what the criteria are for inclusion, sticking the Drone (and/or Targeted Killing) review inside the FISA Court, where the government has already been inventing secret law, simply won’t achieve one of two things that needs to happen: communicating to Americans what can get you killed.

      (emphasis mine)

      without the ants the rainforest dies

      by aliasalias on Wed Feb 13, 2013 at 01:09:51 PM PST

      [ Parent ]

  •  I would be very interested to know (2+ / 0-)
    Recommended by:
    joe shikspack, aliasalias

    if the prisoner being listened to while he and his lawyers and the prosecutor were discussing a plea bargain was Omar Khadr.

                        Curious,
                        Heather

    Torture is ALWAYS wrong, no matter who is inflicting it on whom.

    by Chacounne on Wed Feb 13, 2013 at 08:38:57 AM PST

  •  Secret courts will let UK security off hook (2+ / 0-)
    Recommended by:
    joanneleon, aliasalias

    Secret courts will let UK security services off the hook
    Ken Clarke is defending the indefensible with a justice bill that aims to cover up any evidence of state wrongdoing

    New article at the Guardian. Security services embarrassed when what they did was exposed in court. Horrors! Horrors! The people knowing what the security services are doing in their name. And our CIA is involved as they are trying to keep courts around the world from getting the truth out about what they have done.

    A clear sign of a democratic government's bad conscience is the way it defends a controversial proposal and how it attacks its opponents. The depths to which this government is prepared to go in defence of its ill-named justice and security bill, which will introduce a whole new category of secret courts, is being shown up by Ken Clarke, the unfortunate minister landed with the task of trying to steer it through the Commons.
    The government is desperate to push the measure through. It is being pressed hard by MI5, MI6 and the CIA. For the bill is designed to prevent any sensitive or embarrassing information in their hands being exposed in open court ever again.
    http://www.guardian.co.uk/...

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