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.
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.