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The past two weeks have brought us 3 bombshell exhibits on why the military commissions at Guantanamo are an utter faiure. First,we learned that the audio and video feeds at the trial of alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM) and 4 others mysteriously went out as the defense was presenting a motion, to the surprise of even the judge. (It turned out the "Original Classification Authority" (read: CIA) was the culprit.

Then we learned that the government has been eavesdropping on attorney-client privileged communications through a microphone disguised as a smoke detector.

Now we learn, thanks to the tenacious reporting of Carol Rosenberg who has consistently covered the underbelly of all things Gitmo, that the microphones were not just in a single attorney-client-meeting room, but were systematic, courtesy of the FBI and CIA.

When are we going to stop trying to re-invent a square wheel? The military commissions are, and have always been, a huge failure because they are a form of extra-legal justice invented for the purpose of "trying" (for those lucky enough to see the inside of a courtroom) people whose cases we have hopelessly tainted, first by torture and indefinite detention, and now by a sham judicial process.


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Last week, Navy Capt. Thomas Welsh, the senior legal adviser to the commander of the Gitmo prison, admitted in testimony that the government placed a hidden microphone inside the private meeting room for attorneys and high-value detainees.

Now Army Col. John Bogdan, the commander himself, just testified that--although he had total control of the compound (aptly known as Echo II)--he was unaware that the FBI had hidden microphones inside.

This is difficult to square with Welsh's testimony that he learned more than a year ago that authorities could audio monitor when he saw a law enforcement agent listening while a prisoner, his lawyer, and prosecutors discussed a possible plea deal to war crimes charges. It defies credulity that Welsh didn't share this potentially case-crushing information with his boss.

Both officials' testimony has been lame and contradictory, to put it generously. Welsh said that he was assured the microphone was not used to monitor private conversations between prisoners and their lawyers. (This defies credulity. I'm not sure what else a hidden microphone in an attorney-client room would be used for.) Bogdan testified that, even though the FBI hid microphones (about which he was completely unaware), no one listened. He would only know this because that's what subordinates, who were apparently shielding this damning information from him, told him after they were busted. This is also belied by his testimony that his guards are under verbal orders not to listen in on confidential conversations between prisoners and their lawyers, which begs the question of how they could have done so if not for the microphones, about which he was supposedly unaware.

And the mischief gets even messier. Bogdan testified that the FBI initially installed the microphones years ago and had control of the facility until 2008. Then Navy engineers disconnected the bugs during renovations in October 2012. Then "an intelligence unit" (read: CIA) reconnected them in December 2012, right before the highest-profile military commission trial--that of professed 9/11 mastermind Khalid Sheik Mohammed--began pre-trial proceedings.

The attorney-client privilege is sacrosanct to the legitimacy of legal proceedings.  It is one one of the most fundamental things a suspect relies on. This has been an ongoing issue at Gitmo for more than a decade--when I first worked on detainees issues. And even if the issues of torture and indefinite detention are surmountable by the government, the new-fangled, re-fangled, and retroactively-fangled kangaroo courts known as military commissions are never going to work because they are a second-rate, second-tier, extra-judicial forum created to try to bring legitimacy to a botched, extra-legal detention system we already broke. Instead of trying to come up with new iterations of military commissions every few years, try these people in federal court, or as the Supreme Court recommended, release them.

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