October 17 Commission Session #5: KSM on National Security; Bormann on Bugs; Ruiz on Delays

We return, and KSM is ready to talk---through a translator. The red-bearded Baluch holds forth about “national security.”  The government told you, Judge Pohl, that you must consider national security, along with the fact that thousands were killed on 9/11.  The government takes a broad view of the term, KSM says, and bandies it about constantly.  But “national security” is defined in statute, and the legal definition is what really matters, in KSM’s view.  The government insists that it feels sorry for the 9/11 victims; and yet that same government, now represented by General Martins, has killed millions.  Any dictator, KSM continues, can cite national security concerns, while avoiding legal constraints.  Governments can torture and detain children in the name of “national security.”  The president can take someone and throw him in the sea in the name of “national security.”  Or legislate assassination, or other horrible things.  Thus KSM urges Judge Pohl not to be swayed by the government’s “crocodile tears.”  We are all human beings, he says. This brief appeal to humanity concluded, the court speaks up.  Judge Pohl had been careful not to interrupt KSM, but now Judge Pohl warns him.  The court clearly intends the warning to last, and to apply to all five accused: no more personal comments.  David Nevin understands the court’s admonition, and says that, if personal matters ever should become relevant, he’ll present them in a written motion. The court next moves to “bugs”---Judge Pohl’s clear reference to infestation and mold in the defense attorneys’ offices.  That’s Cheryl Bormann’s issue.  It turns out that she cannot cross-examine the government’s experts.  The latter have not provided her with their CVs and other documents related to the experts’ conclusion that, in fact, the defense’s workspaces do not pose health risks.  For that reason, Bormann sits down without presenting argument: she’s doesn’t have enough information yet.  Michael Leibowitz, a prosecutor, then stands and volunteers to produce the experts’ supervisor, who signed the cover page for their report.  For Judge Pohl, the issue is this: what condition is the office in, right now?  Is it clean?  No, says Leibowitz.  But his witnesses will testify that, while not super-duper-clean, the defense’s facilities are healthy and safe.  He emphasizes that the experts---including an industrial hygiene officer---have certified that AV29 and AV34, the defense’s offices, are safe for everyday use by defense lawyers.      The court cautions the prosecutor: it is the government’s burden to ensure that the defense has access to a healthy and safe workspace.  He isn’t deciding, now, whether the defense’s office is healthy or safe, but nevertheless emphasizes the prosecution’s obligations.  Bormann rises again, to emphasize that she still has not received the experts’ CVs and other materials.  The court stresses that he will reach the infestation question tomorrow. The day’s final argument comes from Walter Ruiz, who is concerned about the court’s chosen schedule: he notes, for example, that the defense’s motion to dismiss for defective referral remains pending.  That, and a related motion to compel witness testimony, lies pretty well down on the court’s list of items to be addressed during this week’s session.  Judge Pohl acknowledges the sweeping effect that the defective referral motion, if granted, would have---but nevertheless sticks to his chosen sequence.  Protective order stuff is up first, and other motions later.  The court is open, nevertheless, to moving defective referral issues up the list a bit, if the parties stipulate to that re-ordering.  Ruiz worries aloud about leaving defective referral, witness production, and other matters until the court’s next session---in December.  He’s frustrated.  In the past, he says, the parties have agreed to present certain motions, but those papers have not found their way on to the court’s docketing orders. Mention of the court's calendar brings the Chief Prosecutor to the microphone.  He reminds the court that the continuances and delays to date have been excludable under military commission rules, and permitted in the interest of justice.  Judge Pohl honors the prosecutor's request to put that on the record. With that, the day is done.