October 16 Commission Session #2: On Fashion in the Courtroom

AE48 is our first motion, and its all about fashion---that is, the authority of the JTF commander to permit some of the defendants’ clothing choices, but to deny others. The dispute mercifully has narrowed, says one of KSM’s lawyers, Captain Jason Wright.  It turns out that the parties have resolved most of their disputes about who gets to wear what---for today at least.  The lone remaining matter is the camouflage vest that KSM wanted to don some time back, but could not.  Could it be appropriate for the courtroom?  The attorney thinks so, among other things because the prosecution only moments ago presented a witness in camouflage garb.  Judge Pohl immediately points out the differences between a U.S. military uniform and the accused’s preference for a camouflage vest.  Do accused terrorists really wear “uniforms,” as the military do, in order to demonstrate their allegiance and distinguish themselves from others?  Wright catches on to the last part.  Under international law, he argues, paramilitaries and resistance groups must distinguish themselves; and here, the 9/11 Commission determined that KSM indeed was a resistance fighter during the Soviet occupation of Afghanistan.  Of course, Wright acknowledges the prosecution's force protection concerns---those are obviously legitimate.  The question is when such concerns arise.  JTF had rejected some articles with pockets.  But Wright emphasizes that Majid Khan was permitted to wear a suit with pockets to his military commission.  Lastly, there’s some government-cited precedent that the lawyer wishes to distinguish---a Texas case involving a defendant’s clothes. But in that case, Lanthrop, the appellate court did not in fact disapprove of camoflauge attire per se, but instead said that a trial court did not abuse its discretion in disallowing the defendant’s camo dress. Major William Hennessy wants to add a fashion-flavored word or three on behalf of his client, Walid Bin Attash.  The lawyer stresses authority: only the judge, and not JTF-GTMO, can decide who gets to wear what in the courtroom.  Oddly, Hennessy agrees with Judge Pohl that the clothing controversy is all but resolved, practically speaking; the lawyer nevertheless highlights his disagreement with the government’s briefing, which unfairly characterizes certain sartorial choices as improperly communicative to commission members, prejudicial, or harmful to national security.  The government's approach stands to undercut the presumption of innocence.  If, Hennessy says, the defense cannot wear a uniform or similar clothing, won’t the commission members assume that the accused are alien unprivileged enemy belligerents?  Judge Pohl’s brow furrows, while the lawyer derides the government’s obvious attempt to force his client to dress like a person subject to the commission’s jurisdiction.  For his part, Judge Pohl seems to doubt Bin Attash’s right to don any old military uniform, other than the clothes he might have worn during his tenure as an alleged resistance fighter. Major Joshua Kirk presents the government’s view.  The defense’s motion should be denied, he says, and the commander’s decision affirmed.  But Judge Pohl is less interested in the JTF staff’s authority than he is in the government’s understanding of the court’s authority.  What, he asks, gives the JTF Commander the power to decide clothing issues in the courtroom?  Kirk doesn’t dispute the court’s discretion or its control over the court.  Instead, he blasts through a string of rulings that, in his view, support the government’s position---ones in which, for example, jailhouse strip searches were justified on security grounds.   Sure, the accused have some rights, Kirk concedes: the government can’t force them to wear prison attire, for example.   But they don’t have the unfettered right to wear whatever they want. I understand force protection issues, the court explains.  And if you raise such an issue, I’ll give it some weight.  But a military official, deciding unilaterally what courtroom litigants get to wear, based in his opinion? That’s not a legal standard.  The court again wonders why this discussion is necessary, given its near-total resolution as among the parties.  Kirk answers by referring to a list of items that various accused had wanted to wear initially.  The disallowed items included an orange prison jumpsuit, some prayer beads, and a scarf.  The staff thought those items “inappropriate”---though mostly because the detainees did not give the JTF staff sufficient time to review the clothing choices, prior to court.  The prosecutor now emphasizes the security rationale for the commander’s decisions: it is harder to subdue a detainee if he’s wearing a lot of clothing.  And the “communicative” rationale matters, too: gang clothing has been rejected because it sends signals to other gang members, and the same holds true for the accused’s attire.  Judge Pohl stops him: how can clothing be propaganda?  The concern, Kirk explains, is that commission members will view the accused’s getup, and draw the wrong conclusions about who the accused really are.  The court interrupts him again, still failing to see any discernible legal standard that he could possibly apply.  How many layers of clothing is too much?  Can Kirk articulate any real limitations on its proposed clothing rule?  He doesn’t, but refers to KSM’s attire during the conflict in Bosnia---which was different than the vest at the heart of the dispute.  It is, fact, issued by the U.S. Coast Guard. We’ll get a written order on the issue, but the court previews its gist in the meantime.  The essence is that the accused cannot wear clothing that is inconsistent with his confinement status.  That is, prison garb is permissible, but has to be GTMO garb for that detainee.  U.S. military uniforms will not be allowed, in full or in part.  Lastly, the court will prohibit any clothing that reveals a security concern--which JTF staff will have to prove to the court’s satisfaction. Cheryl Bormann briefly reminds Judge Pohl of the developing litigation regarding the condition of the defense lawyers' offices, and the court briefly recesses.   Our next issue: secrecy.