Nashiri Motions Hearing #6: Wherein the Defendant Gets Bored and Wants to Stop

The commission convenes against at 2:10 pm for a surprise extra argument. Judge Pohl begins by saying that if either party wants to put on the record material from the in-chambers meeting yesterday, they should speak up. Unsurpringingly, one of the parties speaks up. Defense lawyer Richard Kammen announces that yesterday, the court reviewed with one of the prosecutors a communication from JTF-GTMO that described what appeared to be a new policy: whenever a detainee doesn’t want to come to court, JTF-GTMO will do what he termed a “forced cell extraction” and bring him to the cells outside the courtroom, where he can confirm or not his decision not to attend court. That document was presented, Kammen says, and Judge Pohl indicated that it was not his directive. His directive, rather, was that post-arraignment, the defendant does not have to come to court if the defendant doesn’t want to. This is not an issue today, Kammen says, and it may never become an issue in this case, but he wanted to flag it--as another policy change that may punish his client. He goes on to say that he thinks he is at liberty to say that at the noon hour, Nashiri advised him that he may not want to come to court tomorrow; the hearings have not been that interesting. (The press room at Fort Meade roars with laughter at this.) But if he says at close of business today that he doesn’t want to go, and that is communicated to the court, will there be a forcible extraction to bring him to court? That’s our concern. You advised Nashiri at arraignment that he has a right to come or not to come, he says to Judge Pohl. It seems that if a detainee advises the court the night before that he wishes not to attend with knowledge that there is no changing of his mind later, there should be no forced removal. Kammen says he wants to put that on the record and raise the issue in case it arises tomorrow. Judge Pohl asks Mattivi whether he has a copy of the document. He still has it, Mattivi says, but didn’t bring it with him to the hearing. Judge Pohl asks whether he objects to bringing it and making it a public exhibit--which he doesn’t. Judge Pohl says that he believes that the accused has to be physically present at arraignment, and may also have to be present at certain other sessions, for example, if there are identification issues. Other than that, however, he can choose to come or not to come. There may be a misperception, he says, that Nashiri is ordered to come. He is not ordered to come. Given a choice, after a long day of listening to lawyers, he may not want to come. The lawyers have to come. He doesn’t. Generally speaking, Judge Pohl goes on, how the commander treats him is up to the commander. The judge doesn’t run the camp. If JTF-GTMO feels the need for a forced cell extraction for some reason other than the court proceeding, that’s up to them--subject to review if it seems to be connected to the proceeding. Mattivi says doesn’t understand this ruling. Judge Pohl says again: he is not ordering the detainee to be here tomorrow. That’s his choice. What the commander does in running his confinement facility is up to him. Judge Pohl is not ordering him to do anything. He is saying this, however: he is not under orders to produce the detainee tomorrow or any other time to be at a hearing that he doesn’t have to be at. If he thinks he’s bringing him here because the judge has ordered him to, then he’s wrong. Mattivi says he’s okay with this as long as Judge Pohl doesn’t consider it a waiver of unspecified issues that might be looming because of the capital nature of the case. Judge Pohl says he understands. Kammen, by contrast, worries that this ruling will create a vacuum that will be filled by JTF-GTMO. They will contend that the decision point is not at his cell at the facility but at the cell here, so they’re going to bring him here no matter what. Judge Pohl responds that if the JTF-GTMO commander wants to waste resources by moving Nashiri unnecessarily--understanding that he might have some burden to show why that’s rationally related to running a detention facility if it seems to be just to mess with the detainee--I will certainly revisit it then and find out why that’s being done. But I’m not getting into advisory opinions, Judge Pohl says. Let’s see what happens. Mattivi clarifies that if Nashiri makes the choice not to come and that choice is honored by the commander, the accused doesn’t have the option of changing his mind mid-day. Kammen agrees: There are no take-backs.