RENEE MONTAGNE, HOST:
The military court at Guantanamo Bay set up to try accused terrorists has had to fight allegations that it provides second-tier justice. The Supreme Court found the commissions as established by the Bush administration unconstitutional. Congress tried to reform them, but there are still problems. A pretrial hearing in the September 11 terrorist case was suspended briefly last week to investigate allegations of eavesdropping.
NPR's Dina Temple-Raston explains.
DINA TEMPLE-RASTON, BYLINE: The most dramatic moment of the week's hearing: The one-legged man stood. The defendant, Walid bin Attash, got up to berate the judge. His attorney, Cheryl Bormann, explained what happened afterward.
CHERYL BORMANN: Well, I think it was fairly apparent that he was incredibly disturbed.
TEMPLE-RASTON: He was disturbed because while bin Attash, who is alleged to have chosen some of the 9/11 hijackers, was in the courtroom, guards had entered his cell and seized letters written by his attorney. It happened to three other defendants too. Those kinds of communications are kept in what's called a legal bin, a clear plastic tub with a top, like something you'd get at the container store.
The bins aren't supposed to be searched because of attorney/client privilege. For the sake of Allah, bin Attash shouted at the judge as his attorneys tried to calm him down, this is important. Again, his attorney, Cheryl Bormann.
BORMANN: In this system, every time we turn around, we're finding that they are seizing letters that I have written to him and reading them. They are seizing letters that he wrote to me and reading them. I cannot explain to you how disruptive it is.
TEMPLE-RASTON: The search came at a sensitive time. Just days earlier, it became clear that a third party, possibly the CIA, was monitoring the hearings and possibly recording them. That led to the discovery of other microphones, this time in small interview rooms where attorneys talk to their clients. The microphones look like smoke detectors and had been installed on the ceiling. Defense filed an emergency motion to stop the proceedings until an investigation got to the bottom of it all.
It falls to the chief prosecutor of the commissions, General Mark Martins, to run that investigation, which creates a bit of a perception problem.
GENERAL MARK MARTINS: Usually I keep this kind of thing at arm's length, for good reason. You don't want the prosecution being the one delving into questions of attorney/client privilege.
TEMPLE-RASTON: Still, Martins launched the investigation immediately.
MARTINS: We want to know what happened. I wanted to know what happened. And at the end of a week of investigation, I said unequivocally: listening, monitoring, recording is not happening, and I still believe that.
TEMPLE-RASTON: Martins says the interview rooms are also used for legitimate law enforcement investigations. And that's why the microphones are there.Defense attorneys believe him on that point. No one was talking about a cover-up by the prosecution, which for the military commissions is a baby step towards progress.
What's more, defense attorneys don't think the prosecution is getting illicit information from recordings.
JAMES HARRINGTON: No. We do not have any evidence of that.
TEMPLE-RASTON: James Harrington represents one of the 9/11 defendants.
HARRINGTON: And I don't think that any of us have made any accusations that they have been.
TEMPLE-RASTON: The prosecution may not be involved, but defense attorneys still have questions, including if some other part of the government, such as the CIA, might actually be listening in. Dina Temple-Raston, NPR News.