Daphne Eviatar, a senior counsel at Human Rights First observing pretrial hearings on whether attorney-client conversations were being taped in the trial of Khalid Sheik Mohammed and four others, questioned whether the prison commander could offer assurances about the equipment not being used improperly, The Guardian reported Sunday.
The five, being held at Guantanamo Bay, Cuba, are accused of orchestrating terrorist attacks on the United States.
"The commander of the base himself didn't even know that the cells where the attorneys are allowed to interview their clients are all bugged," Eviatar told the British newspaper. "They all have audio surveillance equipment. That equipment is controlled by the intelligence agencies, not the commander of the base. It's not clear who knows what about how it was being used."
Defense lawyers also discovered courtroom microphones have an unusual level of sensitivity, raising the prospect that privileged conversations were overheard during proceedings.
Prison commander U.S. Army Col. John Bogdan testified last week that secret listening devices disguised as smoke detectors were installed in the cell where lawyers met their clients and that he knew nothing about them.
The revelations about the presence of covert listening devices as well as an incident in which audio of several minutes of courtroom testimony weren't aired have led to attempts by lawyers to claim they aren't being allowed to give their clients a proper defense and charge that the proceedings are illegitimate, the Guardian said.
"What they're saying is they're not able to meet those basic legal and ethical obligations and that undermines the legitimacy of the entire trial. They're not able to form a relationship with their clients because the client no longer trusts them because they're eavesdropping on them and reading their communications," Eviatar said.
She said the lawyers' concerns were reasonable.
"It really disrupts the ability for the attorney to be able to develop any kind of relationship with the client," she said. "If they don't trust their own lawyer, it's very difficult for them to participate in their own defense. That's important, especially in a death penalty case."
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