9/20 Session #1: House, Kept

The dew glistens outside Meade’s Smallwood Hall.  Inside, our grainy screen comes alive, and displays an image of the military judge, Army. Col. James L. Pohl. He ascends the bench and calls the proceedings once more to order.

Who’s here?  Of the accused, zilch. Thus we march through the by-now familiar voluntariness colloquy, between prosecutor Robert Swann and JTF staffer LCDR George Massucco, as to all five absentees.  This proceeds as usual, give or take a stern objection from CDR Walter Ruiz: he protests Massucco’s ability to assess the English-language capability of Ruiz’s absent client, Mustafa al-Hawsawi.  (The witness testifies that Al-Hawsawi read his advice of rights, but signed a document waiving those rights in English.)  Seeing nothing directly relevant, the court overrules Ruiz, and the voluntariness discussion comes to a close as it almost always does: with Judge Pohl finding the absentees to be so knowingly and voluntarily. KSM attorney David Nevin asks whether the court will rule on a defense request (AE181) not to hold monthly hearings, given the extent to which that schedule interferes with the defense’s ability to travel abroad and perform other investigative tasks.  Among other things, Nevin proposes to submit some materials ex parte. The Chief Prosecutor, Brig. Gen. Mark Martins, objects to a re-jiggering of the court’s planned agenda, but he won’t object to ex parte submissions---provided these don’t cut today’s adversarial session short.

The court is reluctant to slow down the schedule, too, and chides Nevin: there’s a lot on this docket that’s been pending for a long time, including (among other things) the protective order.  Until we get that resolved, the case will slog forward in a lower gear.  Nevin rejoins: the delays aren’t attributable to us, your honor; just consider the history of this case, beginning with CIA detention abroad.  That history generated scores of issues that counsel must litigate, and there’s absolutely no reason to do this case at light speed.  Return serve from the court: I doubt anyone thinks this case has proceeded at light speed.  And Judge Pohl believes he has an obligation to move the case forward, while respecting both parties’ rights.  At any rate, the military judge seemingly will accept ex parte submissions, regarding further scheduling and the defense’s burdens; and Nevin seemingly wants not to hold the commission’s next motions hearing, calendared for October.  Evidently, we’ll hear more about this after lunch.  (For what it is worth, it seems the court is quite reluctant to commit, across-the-board, to a less rigorous schedule.

Cheryl Bormann, Walid Bin Attash’s attorney, disagrees with Nevin’s proposal to postpone the October hearings.  Doing so would frustrate her client’s position, given her inability to arrange for DoD-furnished travel funds to investigate the case between now and October.  Better, then, to come to court and litigate.  She underscores, however, that her team is without needed resources: she has but two paralegals, only one of which could attend an October session, because of Army regulations.  It’s an impossible situation, she explains.  And she’ll explain it fulsomely, ex parte.  The gist: Bormann wants hearings every other month, but not a cancellation of the October session.  That is, of course, without prejudice to the defense’s motion to postpone the case for IT reasons.

House kept, we move to the substance---that is, to information technology.