By Jane Sutton
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - A military judge on Monday suggested ripping out the defense table microphones to ease concerns that intelligence agents could be eavesdropping on confidential attorney-client conversations in the Guantanamo war crimes tribunal.
The judge also ordered that doctors examine Saudi defendant Abd al Rahim al Nashiri to determine whether his treatment in CIA custody had left him mentally competent to stand trial on charges of orchestrating a deadly attack on a U.S. warship.
The developments signaled further delays in the attempt to prosecute Nashiri, an alleged al Qaeda chieftain accused of directing suicide bombers to ram a boat full of explosives into the USS Cole off Yemen in 2000.
The attack killed 17 U.S. sailors and Nashiri could be executed if convicted of charges that include murder and attempted murder.
A new round of pretrial hearings in the case began on Monday at the Guantanamo Bay U.S. Naval Base in Cuba, where Nashiri was transferred in 2006 after being held for four years in secret CIA prisons.
The hearing was recessed for three hours to give Nashiri's lawyers time to consult their bosses and bar associations about whether it would be an ethical violation for them to proceed without knowing who might be listening to confidential conversations with their client.
The issue arose after a revelation last week that someone outside the courtroom had briefly cut the closed-circuit feed that provides sound and video to public viewing areas during a pretrial hearing for five prisoners accused of plotting the September 11 hijacked plane attacks on the United States in 2001.
The feed operates on a 40-second delay and a court security officer seated beside the judge has a button allowing him to stop it when secret information is disclosed.
The judge, Army Colonel James Pohl, was furious that an entity outside the courtroom had the ability to close the hearing to the public and ordered the outside kill switch disabled. Prosecutors said it was dismantled during the weekend.
The delayed feed is used for all defendants previously held in secret CIA custody. The judge did not identify the outside monitors but said last week it was an agency that originally classified information pertaining to the case as "top secret."
Even if the outside monitors could no longer cut the feed, Nashiri's military lawyer, Navy Lieutenant Commander Stephen Reyes, questioned whether they had the ability to listen to whispered conversations with his client in the courtroom or during meetings elsewhere.
Pohl said interfering in the attorney-client relationship would be "a serious matter generally deserving serious remedies" but that the defense had merely raised suspicions without offering any proof of a breach.
When the hearing resumed, they offered possible proof.
Defense lawyers said they had conducted a test and found that even when their defense table microphones were turned off, other nearby microphones picked up enough sound for stenographers to hear their conversations and include them in the transcript.
"The courtroom is a huge listening device," defense lawyer Rick Kammen said.
Reyes said "if it is the CIA that is conducting the listening, this is the same organization that detained and tortured Mr. al Nashiri. "We can't just say, 'Ignore the man behind the curtain.' This is an ethical issue."
The CIA has acknowledged that interrogators threatened to rape Nashiri's mother, subjected him to the simulated drowning technique known as waterboarding and threatened him with a gun and a power drill while he was naked and shackled.
The CIA also admitted destroying videotapes of the sessions.
Pohl suggested removing the microphones from the defense area of the courtroom and requiring the lawyers to use the courtroom podium if they wanted to speak publicly.
"Unless somebody can explain to me why they're absolutely necessary then let's just get rid of them. Problem solved," he said.
The judge also granted a prosecution request for doctors with top-secret security clearances to examine Nashiri to determine whether he was mentally competent to assist in his defense.
Defense lawyers said they did not intend to offer an insanity defense. But prosecutors said they were bound by the tribunal rules to ask that Nashiri undergo a mental exam once the defense said he suffered from post-traumatic stress disorder "as a result of torture" in the CIA prisons.
Nashiri could not be tried if the doctors find him mentally incompetent. But defense lawyers hope to spare him from the death penalty by showing he was traumatized by his CIA treatment, which could be considered a mitigating factor at sentencing.
"This guy is really, really damaged because of what the United States did to him," Kammen said.
(Editing by Kevin Gray and Christopher Wilson)