9/11 Arraignment #14: Wherein We Actually Have an Arraignment

The defense’s question-and-answer session is finally done. When asked by the court, prosecutor Mark Martins quickly waives any challenge to the judge from the prosecution’s side. There’s a quick legal discussion among the parties when the judge turns to the defense: Can defendants reserve their challenges to Judge Pohl? The latter’s view is that the defense lawyers indeed can do that. This preliminary matter out of the way, the court formally asks Nevin whether KSM intends to challenge Judge Pohl’s assignment to the case: Nevin says that KSM will not make a challenge at this time, but instead will reserve the matter for later. Ditto Attash, whose lawyers intend to gather more evidence before proceeding with any challenge motion. Harrington, Connell and Ruiz all defer challenges on behalf of their clients, too. Judge Pohl notes this for the record. Classified information is our next issue. Judge Pohl asks Martins whether the prosecution understands its obligations under the secrecy rules set forth in the Manual for Military Commissions. Martins says the prosecutors get it. Then it’s Nevin’s turn: He understands Rule 505, which speaks to classified information; at the same time, he’s seen many different definitions of classified information, and indeed senses that some information barred from disclosure by Rule 505 is, in fact, not considered classified under the executive orders and other pertinent authorities. Nevin’s here is hinting at a motion on the court’s docket, it seems, and acknowledges as much. Having done so, he acknowledges Rule 505, while again insisting that he does not really know what counts as classified and what does not. Schwartz answers on the same lines when asked by Judge Pohl, as does Harrington immediately afterwards. Connell likewise notes his residual concerns about what’s really covered by the classified information rules, and his pursuit of relief from the court; with that said he too acknowledges the commissions’ secrecy procedures. Last but not least is Ruiz, who gives the same qualified “yes” as his colleagues. Judge Pohl then asks the prosecution and defense whether they each understand that they must notify the court, in advance, of any intention to use classified information--the procedure being necessary to consider any courtroom closures. All the lawyers answer in the affirmative. Judge Pohl finally comes to the duty imposed on all counsel, to identify potential dangers to witnesses and to identify the court about them. Again defense counsel express reservations, and claim not fully to understand what’s really required by this particular rule--but ultimately, as before, they all acknowledge their obligations regarding witnesses. Judge Pohl deals with a stray housekeeping matter, regarding the protective order governing the proceedings. He speaks to that briefly, and turns, at long last, to the arraignment of the accused in United States v. KSM et al. The parties all have received a copy of the charge sheet, Judge Pohl says. The court addresses Martins, who starts by reading the allegations common to all five defendants: conspiracy; attacking civilians; attacking civilian objects; intentionally causing serious bodily injury; murder in violation of the law of war; destruction of property in violation of the law of war; hijacking or hazarding aircraft; and terrorism. The question becomes whether any defendants desire to have the charges read to them in open court, as is their right under commission rules. KSM waives that right, says Nevin, while Aziz Ali’s lawyer, Connell, says he is not authorized to request or to waive a reading.  Attorneys for the remaining accused, however, indicate their clients’ desire to have the charges read aloud. Judge Pohl balks at this--at least initially--given the late hour. He says he’s going to defer the reading until the commission’s next session, and takes the added step of assuming and overruling the defense’s likely objections to that approach. On to the pleas of the accused. Mr. Mohammed, Judge Pohl asks, how do you plead--having in mind that motions under Rule 905(b) must be addressed prior to the entry of any plea?  Nevin defers motions and the entry of a plea on KSM’s behalf. Roughly the same colloquy follows for each accused: deferral of both motions and the decision to contest nor not to contest the charges summarized earlier by Martins. Timetable is next. When will the government be ready for trial? Martins proposes August 1 of this year. Nevin won’t be ready by then. Nor will Connell, whom the defense has designated to speak on some pretrial procedure matters. When asked by Judge Pohl, Connell says that the defense has not discussed any particular trial date. How long of delay would you need?  A year? Connell suggests no earlier than 5 May 2013--with that date representing no more than a temporary placeholder. Nevin, Schwartz, Bormann, and Harrington all bless that date on behalf of their respective clients. (Ruiz takes a moment to confer with his client - and while he does, hot microphones pick up some barely-audible cross-talk between Al Hawsawi and his attorneys. KSM chats with his lawyer for a spell, too. We wait a while, until another quite clear, exasperated voice, seemingly not from Ruiz’s table, can be heard to say: “Come on!” The day has run long, it seems. Judge Pohl has been waiting on Ruiz, who ultimately asks to defer the decision on timetable until the commission’s next session. That’s seemingly okay by the court, who adds that the next commission hearing--set for June 12--will address all motions filed on or before May 12.  For Judge Pohl, that’s a necessary approach because many pending motions are not yet fully briefed. This prompts Ruiz to return to his threshold motion challenging the proceedings, which he referred to first thing this morning and several times throughout the day: Our intention, he said, has been to waive our right to reply to the government’s response to that motion, which is already pending. We thus emphasize our intention to have that issue aired now. Judge Pohl understands this, but again says--as he’s said over and over today--that he’s not resolving any motions at this arraignment hearing. Nevin wants to explore alternative session dates with the court.  Is it the latter’s practice to set session times, but not to entertain other possible times, as proposed by the defense lawyers?  This is an annoyance for Judge Pohl, whose practice indeed is to discuss scheduling with counsel--at an 802 session, the results of which can be put on the record. The defense, though, objects to 802 sessions in principle. That’s your choice, Judge Pohl says to Nevin; my practice is to work with counsel at the 802 meeting, but I can’t do that if the lawyers elect not to participate. Nevin emphasizes that the defense has opted out of the 802 session for transparency and secrecy reasons--ones addressed in his motion to the court.  The court accepts that tactic, but says Nevin, for his part, must accept its consequences.  Ruiz jumps in for some two cents: Your honor, earlier you said you’d made it clear that motions were not to be resolved today. But I didn’t see that in any order of yours. Judge Pohl responds by stating that he will give counsel a docket order regarding a hearing’s agenda items; he won’t give counsel a list of items not on the agenda. We move to detainee treatment and housekeeping matters. Judge Pohl is interested in whether the accused must attend all sessions of this capital case. The commission’s rules require the accused’s presence at only a few categories proceedings (like this arraignment), while otherwise generally allowing him or her to forgo appearance at commission sessions.  But capital cases are different, and raise special concerns; could there be a different requirement in this case? There’s some discussion among the parties about it, but the court ultimately decides to hear briefing on the question and then to rule subsequently. That’s a key issue for Bormann, whose client came today in restraints. She’s concerned about his mistreatment by the JTF staff; since Judge Pohl has deferred the attendance question until later, will he nevertheless temporarily order JTF-GTMO not to forcibly extract Bin ‘Attash in a rough manner? I’m not going to make such an order today, says the court, but I will do so prior to our next hearing--assuming the parties authorize me to resolve the question without the need for an argument session. Still hoping for interim relief, the lawyer again mentions JTF-GTMO’s policy of forcibly extracting the accused, one which her client has taken as a direct threat.  Her attempt is unsuccessful, as Judge Pohl again declines to issue an order without full briefing. Nevin piggybacks: before our session today, he says, KSM was strip-searched in a demeaning fashion. That puts his client in a bind, as he therefore must choose between an invasive and demeaning search, on the one hand, and forgoing his right to appear before the commission on the other. Judge Pohl again says he understands, and emphasizes that the treatment issues raised by Nevin and Bormann are indeed valid. But, the court goes on, I cannot address those problems in a vacuum: Judge Pohl’s decision is to receive briefs as to precisely what happened, and precisely what the applicable rules say. Over to Harrington, who is worried about his client’s ability to access legal documents. He cannot do so presently, because of administrative punishments imposed by JTF-GTMO.  The attorney gets the same answer the others got: file a motion, counsel, I’m not resolving this issue now. Connell then adds his two cents for the court, but these concern possible redactions to classified information, rather than an informal, motionless request for relief a la Bormann or Nevin.  Judge Pohl is visibly relieved. Bormann once more notes her concerns about her client’s punishment by the JTF staff. Any parting items, Commander Ruiz?  One, your honor.  It is a list of clothing provided for his client’s use.  The clothing, though, was apparently never given to Ruiz’s client, and the lawyer wishes to put that on the record.  Okay, says Pohl. Judge Pohl is ready to wrap things up--except for one thing: You’ll recall that earlier, some of the accused had waived the reading of the charges. One lawyer, Connell, was not permitted to express his client’s wishes on the matter. And Schwartz, meanwhile, had asked to have the charges read aloud to his client, Bin ‘Attash. Despite that request, Judge Pohl had decided to put off the reading until the next commission session. He even went so far as to bat away some presumed--but never actually articulated--objections to that procedure by the defense. But now the judge seems to overrule himself: Addressing the defense, he offers two possible alternatives: You can sit here while the charges are read--and that’s a lot of reading we’ll have to do, given the length of the charging documents and their incorporated factual allegations--or have the charges read at the very beginning of our next  commission session.  The court asks Schwartz how Bin ‘Attash wishes to proceed. The accused mulls and whispers to his lawyer. Then Schwartz asks for the charges to be read aloud. We’re thus in for a nice, long monologue from the prosecution. Best get cozy, y’all. The day’s far from over. (Ruiz says in passing--perhaps sensing that there’s plenty more sitting and listening to come--that earlier, Aziz Ali’s translator had been assisting Hawsawi at counsel table.  Hawsawi still has no translator of his own, Ruiz says.) The court takes a brief recess before the reading of the charges. And your humble correspondents decide that the court’s business being done, we can go have dinner instead of listening to the reading of charges. According to the unofficial transcript, the charges are read, one-by-one and in all of their exquisite detail, to those still present in the courtroom. This final, slogging phase of the marathon arraignment in United States v. KSM et al lasts from 7:56 p.m until 10:28 p.m. In the midst of it, there is only one noteworthy hiccup. Despite having requested the reading of the charges, Bin ‘Attash has been chatting with Schwartz during it. Neither man seems to be listening much, and this triggers a scolding from Judge Pohl: In twelve years as a judge, he’s never heard a lawyer ask for the charges to be read aloud before, he says. You can’t hear the charges if you are talking, and you asked for this. Now do you want them read or not? We do, Schwartz says. The reading then presses on, through page after page, but finally and mercifully for those still present, comes to a close. Our next session will begin on June 12.