9/11 Arraignment #9: Defense Qualifications Begin

Our arraignment programming then shifts to the qualifications of defense counsel, which, under commission rules, must be recited on the record. There are some rules-mandated inquiries between Judge Pohl and the attorneys, too--most importantly, some questions and an oath regarding counsel’s ability to represent the client faithfully. As before, we’ll spare you the details about who majored in what, where he or she worked earlier in his or her legal career, and so forth. Beyond the routine, however, we saw a few juicier, more substantive exchanges. Those are summarized below. In an ideal world, Judge Pohl would be discussing Jason Wright’s credentials and past experience alone regarding his representation of KSM. But the attorney has other matters on his mind--chiefly his ability to access and communicate with his client on a confidential basis.  So that’s what he emphasizes, to the court’s evident annoyance. What does this have to do with qualifications, asks Judge Pohl. Those things bear on our ability to do our job in defending our client, answers Wright. Okay, but if that is true, Pohl says, then I can remedy the access problem at the right time. Right now, the sole inquiry is into your qualifications.  If you have an access issue regarding your client, then that is a separate matter.  Not so, rejoins Wright; it is incumbent on us as counsel to identify impingement on our relationships with the client. We need to put this on the record, too. For Judge Pohl, it doesn’t work that way. He says: if you have something you want me to do about your problem, then fine. But if you’re saying there was a problem that does not preclude you from going forward with this arraignment, then what’s the point of noting your access difficulties for the record? The point has to do with Rule 502, which regards the duties of counsel and counsel’s qualifications. What’s more, Wright adds, we are required to represent the accused with undivided fidelity, and cannot disclose secrets or confidences.  The attorney thinks he might not be able to do that. Listen to me, insists the judge. You say you are qualified. At the same time, you’ve claimed that the JTF staff has impinged upon your ability to communicate confidentially with Mr. Mohammed.  If you think that disqualifies you, well, that’s your issue. But if you are trying to put something on record for its own sake, as an observation without supporting evidence or a requested remedy, I cannot accept that.   Counsel tried to have this matter heard earlier, complains Wright. Right now, we cannot speak in confidence with our client. Then, and only briefly, we catch a glimpse of Judge Pohl’s thinking. The synapses fire, and a candid question travels straight from his brain to his mouth. Why is this so hard, he asks? For a second time, he asks the lawyer to listen. You say there’s a wrong here: namely,  your inability to speak confidentially with your client. There’s a remedy for that, and a time to raise the matter, too. When that time comes, Judge Pohl insists he will listen.  What he won’t do is listen to lawyers actings as witnesses concerning facts related to their clients’ treatment. Wright says his intent was to protect appellate record, to identify issues that prevent him from fulfilling his duties. But I understand, he says, that Judge Pohl feels he should not put that into record. If you want something to be done, Judge Pohl insists, I’ll listen at the appropriate time, but a stand-alone comment without a request for relief is just that. It has no support; it doesn’t request a remedy from the commission. Wright responds that both an action and a remedy were requested. Ruiz has requested action, Wright says, and Wright supports his request. Judge Pohl responds again that when we get done with the arraignment, that’s the time for Ruiz’s motion. Ruiz stands up, and Judge Pohl asks whether his point concerns qualification. When it’s your turn, he says, you can say what you want. Your statements to Wright, Ruiz says, are relevant to issues we want to put before you. Judge Pohl says he does not want to have the same argument for the fourth time. You disagree, he says. Fine. Let’s move on. But before we can move on, it is time for an outburst from one of the defendants. Binalshibh is shouting something about Qadaffi. Judge Pohl informs him that now is not the time for his rant. Binalshibh responds that maybe you are not going to see me anymore. It’s not about choice. It is about our treatment received at the camp. They are going to kill us at the camp, and say we have committed suicide! You are disrupting the proceedings, Judge Pohl informs him. It’s not appropriate. There are rules. You can’t talk out of turn. You’ll have an opportunity. Okay, Binalshibh shoots back, but the right time is now, not tomorrow. Fine, Judge Pohl says; you made your point. It is not appropriate to interject at this time. In the judge's colloquy with Schwartz regarding his representation of Bin ‘Attash, Schwartz raises another issue. While he is qualified under the rules, he says, he is uncomfortable with the extent to which the script--the series of questions Judge Pohl is eliciting his answers to--might make it appear that he is qualified given current resources. GIven those constraints, he says, I do not feel qualified to the representation. Are you saying you have to withdraw? Is that what you’re telling me, Judge Pohl asks? Or do you have a responsibility as a lawyer to file for appropriate relief?  We will be doing so, Schwartz responds, but it’s bothersome to be constrained by a script that creates the appearance of my agreement with something I don’t agree with. In her qualification colloquy, Bormann objects to the script entirely. She’s not used to a script, she says. We don’t need one where I practice; we don’t need a script to establish our credibility. When asked to swear to dutifully represent her client, she will swear only to do her best given the conditions she faces.