9/16 Session #1: Presence, and a Recess

It’s on again.  All five accused are present.

Opening the day's events are housekeeping matters, as always.  First, since last session, the prosecution has added a new lawyer.  Secondly, one of Walid Bin Attash’s attorneys, Cheryl Bormann, is not feeling well and must seek a recess, now, to seek urgent care from a base doctor.  (She looks ill and sounds quite hoarse, as the court observes from the bench.)

Before the recess happens, though, it is voluntariness time.  The military judge, Col. James L. Pohl, thus advises each accused of the right to be present during all sessions, and of the potential consequences that might follow even a knowing and voluntary waiver of that right.  Do the accused understand?

Maybe not entirely.  When prompted, Khalid Sheikh Mohammed pipes up and mentions the advice of right's implications for attorney-client meetings.  It is not quite clear what the accused 9/11 mastermind means to say---the translation is slow, and only partially audible---but he seems to wonder about what waiver means for his counsel rights, and complains that he can’t bring in needed documents to lawyer conferences.  Batting the remark away as irrelevant, the court asks again: but do you understand your rights as I have explained them?  I won't discuss unrelated legal issues, Judge Pohl says.  Further protest from KSM prompts Judge Pohl to conclude that, no, you don’t understand your rights and the risks inherent in waiver.

Walid Bin Attash does understand those things, he tells the military judge.

Does Ramzi Bin al-Shibh?  Again, we cannot know for sure, the audio having not yet kicked into higher gear.  Even if the accused does understand, he’s also quite irritated, and thus desires to speak out.  Speaking English, he says he has that right, at a minimum.  The military judge counters that no, Bin al-Shibh does not.  The accused talks on in any case, with Judge Pohl telling him that outbursts will result in dismissal for unruly conduct.  And lo and behold, it seems the disruption will bring about this accused’s temporary absence this morning.  

Mustafa al-Hawsawi and Ammar al-Baluchi understand their rights.

KSM’s lawyer, David Nevin, elaborates on his client’s earlier comments---which, the lawyer says, had to do with the advice of rights.  The written version suggests that a detainee has a right to meet with counsel.  But these meetings really aren’t what they are cracked up to be, Nevin argues.  And that is what KSM evidently meant to convey in his remarks, that the accused’s ability to meet with lawyers is constrained, without regard for presence or absence.  The military judge bats this away, as he did before: this, he observes, has nothing to do with presence rights, which is the lone subject under discussion.  The parties then debate the advice of rights, the defense finding implicit or semantic fault with its language, the prosecution seeing no problem with the document's acknowledgment of something obvious: that an accused who absents himself from court obviously loses some ability to confer with lawyers who will remain in the courtroom during legal proceedings.

With that colloquy finished, the court tries again: now, does KSM understand his presence rights?  The answer is yes.  As for Bin al-Shibh, the court finds his conduct disruptive, and therefore excludes him from the courtroom.  (One of his attorneys, James Harrington, says he did not hear the court ask counsel to tell bin al-Shibh to pipe down.)  Bormann reports that she’ll be seen by base doctors at 10 a.m.  We’ll recess until noon. [This post has been updated]