9/18 Session #1: Two Here, Three Not

At 9:03 a.m. the military judge, Army Col. James L. Pohl, ascends the bench.  All defense counsel are here, including Walid Bin Attash’s attorney, Cheryl Bormann---who still sounds stuffed up, but reports that she feels somewhat better, about 75%.

Of the five accused, only Walid Bin Attash (whose head is covered, in something of a sartorial change) and Ramzi Bin al-Shibh are in the courtroom. The absence of three others---Mustafa Al-Hawaswi, Khalid Sheikh Mohammed, and Ammar al-Baluchi---means an inquiry, conducted by prosecutor Robert Swann, regarding whether the skippers were informed of, but voluntarily waived, their rights to be here.  Our usual witness, LCDR George Massucco, confirms this.

Recall the events of Monday morning, when Bin al-Shibh loudly asserted his right to speak and the court dismissed him for disruptive behavior.  That came before the accused acknowledged his right to be present and his ability to waive it.  Now comes one of Bin Al-Shibh’s lawyers, LCDR Kevin Bogucki, who protests his client’s removal earlier in the week---or tries to, before Judge Pohl cuts him off.

The accused simply standing up in court and spouting off, the court snaps, is not how business is conducted; Judge Pohl won’t quibble with an accused when the lone subject for discussion is presence rights.  The lawyer parries, insisting that Bin Al-Shibh’s outburst in fact went to presence: the accused has been subjected, time and again, to mistreatment and abuses by JTF staff.  And those prevent Bin Al-Shibh from sleeping, and therefore also impinge on his ability to attend court hearings.  Moreover, Bogucki continues, he’s raised these very issues in a prior motion (AE152)---but the JTF has continued to mistreat his client.  If so, scolds Judge Pohl, then you can bring that problem to my attention in the usual way; your client, however, doesn’t get to speak out whenever he likes.

The defense attorney marches on, clarifying that Bin Al-Shibh didn’t actually interrupt Monday’s proceedings (the accused was asked a question, after all), and underscoring the impact of JTF misconduct on his attorney-client relationship.  The eyebrows furrow at the bench, Judge Pohl exasperatedly noting that the presence waiver mechanism was devised, initially, because of a defense request.  So too with Bogucki’s eyebrows: the defense wants his client to be meaningfully present in court, but he can’t be, given JTF’s policy towards Bin Al-Shibh.