12/17 Motions Session #2: In Which Bin Al Shibh Is Removed

Will Bin Al Shibh be staying or going?

Staying, evidently, while also objecting.  Their recess chat having concluded, Bin Al Shibh's lawyer, CDR Kevin Bogucki, says that his client feels strongly about his mistreatment, and wants it redressed now.  The detainee has “cut back on his calories,” in protest, Bogucki adds.  But all this amounts to nothing more than further proffer, to an already tired Judge Pohl’s eye. (The government, when asked, denies that the guard force is, in fact, tormenting Bin Al Shibh.) The court thus sets out the way forward: if Bogucki wants to pursue these seemingly recurring issues---his client’s mental state, or the guard’s true conduct---well, both can be raised in motions, and not raised by counsel ad hoc.  In response, Bogucki reminds the court that, earlier, he put in an expert affidavit, to the effect that Bin Al Shibh is not delusional; that takes care of any competence problems, he seems to say.  And as for evidence, why, wonders the lawyer, couldn’t Bogucki simply leave a recording device in the detainee’s cell, so as to establish what really happens each night, vibrations-wise? That would get to the bottom of things.  An already haggard-sounding judge now does some wondering of his own, again asking why Bogucki can’t just file a motion, seeking a legal remedy, and turning on the submission of admissible evidence.

At any rate, attention returns to Bin Al Shibh's rights to be present.  The court asks if Bin Al Shibh understands those rights; an angry detainee says he “totally refuses” to answer that question, so long as the judge takes a position against him. For his part, Judge Pohl denies having any position at all vis a vis the accused. And, given Bin Al Shibh’s non-answer, Judge Pohl concludes that the detainee must remain in court until he knowingly and intelligently waives.

Now there’s some more unhappy stuff from Bin Al Shibh---only some of which is audible in the Smallwood CCTV facility.  In broken English,  Bin Al Shibh spouts words like “waterboarding,” and “CIA secret prison.”  All the while he waves a finger and talks over the court, as the latter calls for order.  A stern warning is made to James Harrington, Bin Al Shibh’s lawyer; Judge Pohl says that the detainee risks exclusion if he keeps this stuff up.  Nevertheless, he does. The military judge thus makes good on his minutes-old threat, and orders Bin Al Shibh to be returned to his holding cell for the morning.  He’ll get an opportunity to return this afternoon, apparently.

On to the merits of AE008---a long pending, exhaustively briefed and cross-cutting motion to dismiss the case, because of problems the defense encountered before the Convening Authority opted to refer death penalty charges.  But wait: Walter Ruiz, Mustafa Al-Hawsawi’s lawyer, rises and explains that AE008 is not quite ready to rip.  For Ruiz has not yet received, as he long ago requested, a confidential assessment of Al-Hawsawi’s English language capability.  (The provision---or not---of translators to the defense, pre-referral, is relevant to arguments advanced in AE008.)  Ruiz also desires additional discovery, which the prosecution will not turn over until defense counsel sign a memorandum of understanding (“MOU”) related the the case’s protective order. (Executing the MOU is a precondition to receiving classified discovery---but only one defense team, Al-Baluchi's, has signed it; all other counsel refuse, claiming that the MOU is unlawful.) Bin Attash’s lawyer, Cheryl Bormann, doubles down on Ruiz’s arguments.  There are certain classified matters relevant here that await rulings, she says; Bormann also tells the court that she’s got another motion in play, AE046C.  In it, she seeks reconsideration of a prior ruling regarding evidence potentially relevant to AE008’s resolution.

So there are some ends left to tie off after all, it seems.  These prompt the court to re-jigger a bit.  We’ll move forward, not with AE008's substance but instead with Bormann’s filing, AE046C.  After that, its AE008-time, for four of five defense counsel; Ruiz will argue his position on the motion later, presumably after his issues have been resolved.