2/4 Al-Nashiri Hearing #3: Retroactive Colloquies Over the Right Not to Show Up?

We know Judge Pohl wants to hear argument on two motions this afternoon.  Now he tells us which ones: AE99D and AE140. The pair are interrelated, and were both filed by the prosecution. The government turns first to AE99D.  It deals with whether the court needs to retroactively clarify that al-Nashiri’s absences at some earlier commission hearings were, in fact, knowing and voluntary. Mattivi argues that the rule regarding the accused’s right to be present---or not---at commission hearings has changed somewhat over the course of the case. Early on, he says, the defendant had to be asked at the outset of each day whether he wanted to attend.  And if he declined, the court did not have to revisit the waiver of presence rights until the following day.  With this as the procedural rubric, al-Nashiri didn’t show up for a few days. Later, however, Judge Pohl decided on a change.  And from that point on, the court would inquire into presence matters twice, both before both morning as well afternoon sessions---rather than doing so only once, in the morning.  The regime's evolution is the reason for the prosecutor's presence at the podium.  Mattivi wants to clarify that, on the days in question, al-Nashiri's absences were voluntary under the waiver procedure's latest iteration. Nothing is easy, however, and Reyes doesn’t want to put his client on the record unnecessarily. The last time al-Nashiri had a colloquy with the judge, the lawyer notes, it had negative consequences for al-Nashiri.  Indeed, his in-court response triggered today's government request for an inquiry into al-Nashiri's competency. What’s more, the government has not put forth any reason to believe that al-Nashiri's earlier absences were other than voluntary.  Thus, there’s no real issue here to resolve.  And if not, then there's no need for a on the record chat between court and accused, either.  Reyes and Judge Pohl then have a long and quite-circular discussion, one not really about AE99D at all but instead about our second motion for the afternoon, AE140---the government’s motion for a competency board to evaluate al-Nashiri. The defense seeks discovery in connection with AE140.  Reyes reiterates that the competency issue arose from a colloquy between the accused and Judge Pohl.  He wants to make clear that another colloquy might lead to adverse government action against Nashiri---a compentency board or something else---and thus obligate the defense to move for further discovery into the action's consequences for its client. Judge Pohl takes the colloquy-blowback-discovery question under advisement, and proceeds to our next motion.