Statement by the Chief Prosecutor on This Week's Hearings in the 9/11 Case

As in courts-martial, members of the Office of Military Commissions staff—separate from the prosecution—support the administrative functions of the courtroom under supervision of the Judge. One of those administrative functions is transcribing commission proceedings and preparing the record of trial. Court reporters, who are trained and certified in that vocation and who swear an oath to perform their neutral duties faithfully, transcribe commission proceedings they hear from audio-feeds projected to their headphones by microphones from counsels’ desks and the judge’s bench. These microphones can be turned on and off by the individual counsel, depending on whether they wish to be heard by the court reporters. The prosecution never listens to any confidential communications between the accused and their counsel. To do so would be a blatant violation of our professional responsibilities and our oaths to serve justice and would also implicate the court reporters in a breach of their oaths and neutral responsibilities. And let me be clear that there has never been any substantive or credible allegation that the prosecution listens to such conversations. On 6 December 2012, the Judge adopted by protective order the practice of delaying, by forty (40) seconds, the audio-visual feed by which members of the public observe the proceedings (Appellate Exhibit 13O). As the Judge explained last Tuesday, the sole purpose of the delay is to prevent the spillage of classified information. This prophylactic measure is much less restrictive than closing the courtroom entirely and is necessary to protect classified sources and methods during open proceedings. In this way, the 40-second delay serves the goal of greater openness. As the Judge further explained, the Chief Security Officer (CSO) is the principal security advisor to the Judge and an officer of the court. The Judge is assisted by the CSO and other experts on security matters, as well as by counsel, in protecting classified information in the conduct of proceedings. Like all officers working within the military commission system, the CSO takes an oath to faithfully and impartially perform his duties consistent with the laws applicable to trials by military commission. The CSO may receive assistance from Original Classification Authorities (OCA) on when to suspend the audio-visual feed, but, as the Judge ruled today, only the CSO may suspend the audio-visual feed. If the CSO suspends the feed, he will then consult with the Judge, after which the Judge—and the Judge alone—may close the courtroom to the public, and thus keep sealed any statements made in court during suspension. The Judge also made abundantly clear in that ruling that he takes seriously his responsibilities to protect national security information and to authorize closure of proceedings in accordance with the Classified Information Procedures Act (CIPA), Rule of Court 10, and Rule for Military Commissions 806. This week, the courtroom feed was cut for a short period of time. I understand that observers may become frustrated when part of a proceeding is withheld from view, even temporarily. As has been repeatedly stressed, any closure of proceedings from the public must meet the same strict criteria demanded in federal civilian criminal trials—namely, the Press-Enterprise II factors—and thus must be as narrowly tailored as possible, preserving on the record the rationale and basis for civilian appellate court review. Our commitment to this standard has not changed. After this closure—which the Judge explained was not occasioned by any actual spillage of classified information—the unredacted transcript of what was said during this brief instance was released to the public in less than 48 hours. Many officials continue to work hard to ensure that the public can meaningfully observe and make informed judgments about these proceedings, while protecting our national security interests.