8/19 Motions Session #7: Is There a Doctor in the House?

Our latest recess is over, and Judge Pohl begins by noting Walid bin Attash’s absence. This prompts Cheryl Bormann to report on her client’s status in further detail. He will be seen by a gastrointestinal specialist on Friday, she says.  Bormann adds that a different doctor is available to testify right now, as to Bin Attash’s symptoms; she says that the latter is in pain and that moving is difficult for him.  The punch line: Bormann suggests a delay in the hearings until tomorrow, so as to allow Bin Attash to recuperate and then return fresh.

Prosecutor Robert Swann thinks the ailing accused ought to return to the courtroom and engage in a colloquy with Judge Pohl. Like Bin Attash, twenty percent of the American public under 40 suffers from gastritis, Swann says; Judge Pohl is not particularly interested in hearing about such borderline-irrelevant statistics.  The government lawyer adds that the accused has suffered from gastritis for over a week, and yet he has met more than once with his counsel in that time. And the illness might persist, Swann cautions, requiring us to continuously revisit his ability to come to court each day.

Rejoining, Bormann clarifies the difference between voluntarily waiving one’s presence rights, and being incapable, because of illness, to attend court.  Her excursus goes a bit more, before Bormann accepts the court’s suggestion that, indeed, a doctor’s word on Bin Attash’s status might be appropriate.  (She doesn’t say whether Bin Attash could take the stand right now.)

The Chief Prosecutor, Brig. General Mark Martins, calls the military judge’s attention to D.C. Circuit jurisprudence regarding voluntariness, including when attendance is made impossible for health reasons.  (He’s eager, as always, to protect his appellate record from even the most far-fetched presence challenge.)  The judge has a number of options other than delay, General Martins explains---a short colloquy, for example, could clear up the situation.  The accused might also watch proceedings from a remote location.  All told, Judge Pohl wants to hear what Bin Attash’s medical condition really is, in the views of an objective expert.  Then we can move forward, the court says.

So is there a doctor in the house? No, but we have one nearby---only fifteen minutes away, trial counsel tells the commission.  Bormann would like the doctor to bring along medical records, as she has not yet seen them. Judge Pohl can’t promise that he’ll require the doctor to do so. But he can, and does, promise that the prosecution won’t be interviewing the doctor without her in the room.

Marching orders: we’ll recess now, hear briefly from the doctor (who is now en route), and wrap up open proceedings for the day.  (A closed session, regarding AE052, will follow.)