Navy Capt. Thomas Welsh, the senior legal adviser to the commander of the Guantanamo Bay prison, conceded the microphone appeared to be intended to resemble a smoke detector in the ceiling of a meeting room for men labeled "high-value" detainees by the Pentagon and held in a special top security camp at the U.S. base in Cuba.
"I agree with your point that it was not recognisable, it was not readily identifiable," Welsh said under questioning by David Nevin, a lawyer for Khalid Sheikh Mohammed, who has portrayed himself as the mastermind of the September 11 terrorist attacks.
The admission came during a pretrial hearing. Lawyers for the five men charged with planning and aiding the attacks have asked the judge presiding over the military tribunal to immediately halt the proceedings in the long-stalled case over fears that authorities have been monitoring their private conversations in violation of attorney-client privilege.
Military officials have said they conduct only video monitoring for security purposes of attorney-client meetings in the complex known as Echo 2 so that guards can quickly respond to an emergency. But Welsh said that he learned in January 2012 that authorities had the capability for audio monitoring when he saw a law enforcement agent listening while a prisoner, his lawyer and prosecutors discussed a possible plea deal to war crimes charges.
Welsh said he went to the officer in charge of prison security to make sure no one was listening to private meetings the prisoner have with their lawyers or with representatives of the International Committee of the Red Cross who make periodic visits to Guantanamo. He testified that he was assured that no such monitoring was taking place and that the hidden microphone was disabled. It was not clear from the testimony whether there were listening devices in other meeting rooms at Echo 2 or elsewhere in the prison camps.
Prosecutor Clay Trivett sought under cross-examination to suggest that lawyers could have examined the listening device closely and determined it was not a smoke detector. Earlier, the chief prosecutor, Army Brig. Gen. Mark Martins, had said there was no evidence of any eavesdropping.
Defense lawyers have long suspected they were being monitored in Guantanamo. But the issue emerged in the Sept. 11 case during a Jan. 28 pretrial hearing when the sound system in the courtroom was suddenly cut, to the surprise of even the judge. The judge later revealed that a government official, from an agency that the military has refused to disclose, was following the proceedings from outside the courtroom and intervened to prevent the potential release of classified information.
The judge, Army Col. James Pohl, later said the information was not classified and he ordered the undisclosed government agency to disconnect any equipment that could unilaterally cut the sound. He also released a transcript of the censored remarks.
Defense lawyers said they feared the same unknown government agency was capable of hearing even the whispered sidebar conversations they have with their clients inside the courtroom.
A courtroom technology manager, Maurice Elkins, testified Tuesday that the microphones used by attorneys inside the courtroom have been changed so they will no longer be live unless they are manually activated to address the concerns of the defense.
The concerns about violations of attorney-client privilege, a core principle of military and civilian law, has sidetracked the pretrial motions called to resolve procedural and legal issues that must be addressed before a trial.
The slow process has been hard on the family members of people killed in the Sept. 11 attacks who are chosen by lottery to attend court sessions. Eve Bucca of New York, who lost her husband, Ronald, and was at Guantanamo this week, said she would prefer the case had already reached the evidence stage but understands the need to address preliminary issues.
"The last thing you want to see is for something to come up later that could have been addressed now," said Bucca, whose 46-year-old fire marshal husband was in the World Trade Center when it collapsed. "So, yes, it's somewhat frustrating but it's understandable ... I don't want anyone let off on a technicality."
Mohammed and his four co-defendants are being prosecuted by a military commission, a special tribunal for wartime offenses, on charges that include terrorism and nearly 3,000 counts of murder for their alleged roles in the attacks of Sept. 11, 2001. They could get the death penalty if convicted at a trial that is likely at least a year away.