More on Surveillance Tapes and Terrorism Trials

Ben Weiser of the New York Times wrote in today, and reminded me that the 9/11 case is obviously not first to confront the issue of secretly-recorded conversations between the defendant and other Guantanamo detainees.  The question came up in the civilian prosecution of Ahmed Ghailani.  His is the most natural parallel to the 9/11 case, in that both commenced before military commissions, but were then halted and transferred to the Southern District of New York.   (As is well-known, Ghailani's case was tried to verdict there, and now is on appeal to the Second Circuit; but the civilian 9/11 case was scuttled, with military commission proceedings against the five 9/11 defendants formally resuming last month at Guantanamo.)    The below is an excerpt from Ben's excellent coverage of the Ghailani case, from about a year and a half ago:

Ahmed Khalfan Ghailani, the former Guantánamo detainee now on trial in Federal District Court in Manhattan, has been interrogated repeatedly over the years: by the Central Intelligence Agency, by the Federal Bureau of Investigation and by the Defense Department. And while there has been much focus on what he said during those sessions, the government has also been listening to him in another way. At the military prison at Guantánamo Bay, Cuba, the government was recording candid conversations he had with at least one other detainee. The contents of the recordings are classified, and they have not been mentioned to the jury in Mr. Ghailani’s trial, which has entered its third week.

One intriguing feature: Ben's piece describes how a transcript of Ghailani's conversations was evaluated by a psychiatrist who testified as to Ghailani's competency.  But the article also scrupulously notes that the taped conversations were not played for the jury that ultimately convicted Ghailani of conspiracy.  That may or may not be significant.  A likely possibility is that the Ghailani recordings did not contain anything like the incriminating statements KSM allegedly made to other detainees at Guantanamo - which were also caught on tape, and which prosecutors were eager to use as evidence in the civilian prosecution of KSM and the other 9/11 defendants.  Presumably, the U.S. Attorney's Office would have been just as eager to introduce any comparable admissions against Ghailani.