9/11 Arraignment #10: More Defense Qualifications

The pattern of defense lawyers’ injecting their concerns about the treatment of the detainees--and their access to them--into their own qualification colloquies continues through the other defense lawyers' exchanges with Judge Pohl. Kevin Bogucki notes that given the rules and U.S. detention policy, it is very hard to form an attorney-client relationship. Patience and time is required, and he has been detailed to this case now for less than two weeks. He has not yet formed a meaningful attorney-client relationship with Binalshibh. James Harrington, in his exchange, repeats the claim that the rules impair his ability to represent Binalshibh in a fashion consistent with the ethical obligations imposed by his state bar. Maj. Sterling Thomas, an attorney for Ali Abdul Aziz Ali, notes that he has sworn an oath to defend the Constitution, and that the restrictions imposed by JTF-GTMO impair confidential communications with Ali. The contents of their protected communications are monitored, he says. And these and other constraints severely restrict his ability to do his duty. He will attempt to do so faithfully, he says, but he has been prevented from providing effective assistance so far. Judge Pohl tells him that if he has a problem with his ability to represent his client, he should raise it in an appropriate manner. James Connell--also representing Ali--actually goes so far as to say he can’t take the oath, though he will do his best to represent his client. If you are refusing to swear, Judge Pohl replies, then you cannot appear. Your choice. Connell says he has two observations. First, he has filed a proper motion flagging his issues. Second, he is not indicating, he says, that he would not swear, but he would express reservations. I’ll swear, he says, to do my best to perform my duties. Perhaps I misheard.  Judge Pohl says, but I thought you said you cannot take an oath at this time. The translations can confuse matters, Connell reponds, but there was a second clause in his statement: He is willing to do his best to do his duty. This is like being pregnant, Judge Pohl responds: You take the oath or you don’t. It’s up to you. If you take the oath, you’re not conceding that you can do the job under the rules. You’re swearing to make your best effort to represent your client. You cannot have both ways. You either take the oath or you don’t. Connell agrees. Just to make it clear to everyone, Judge Pohl goes on, there may come a point where you cannot continue ethically because of unresolved interference, and then you may have to withdraw. Ruiz, in his qualification discussion, says he wants to talk to his client and he needs a translator. He wants to talk to his client, he says, about his qualifications. Where do you expect a translator to come from, Judge Pohl asks? Ruiz responds that he has been asking that for a year. I have been asking the government to properly resource this case so that I can talk to my client about the issues we will address in a few minutes, he says. Judge Pohl asks: You have never had a translator in three years? The office of defense counsel doesn’t provide one? That is the subject of our motion, Ruiz responds. We want to get into it. Judge Pohl is not buying. He turns to Martins: Do you have a spare translator, he asks? He asks it like he's asking to borrow a buck for the soda machine. Ruiz says he doesn’t want one of the prosecutors’ translators. He wants an independent one. That’s my motion, he says. It’s a clearly-briefed issue. We’ll talk about that at the appropriate time, Judge Pohl says. That’s the fifth time he has said this, he notes--significantly undercounting his actual expression of this particular idea. You’re raising this issue, Ruiz tells him, and the answer to your question is no: We haven’t had a translator in three years. Judge Pohl turns back to Martins. Do you have any suggestions, he asks? Martins says he’s not sure he does. It’s true he hasn’t had a translator, he says, because he’s turned down every one we’ve offered. Here’s what we are going to do, Judge Pohl says. We’re going to break for lunch and so that the detainees can pray. And when you return, I’m going to ask you about your qualifications.  You can answer, or you can not answer. But if I cannot swear the oath, I may need a translator to talk to Al Hawsawi about my need to withdraw, Ruiz says. If you think you cannot perform ethically, you’ll have to withdraw. If you cannot do qualifications, you cannot appear. The court recesses. We return from recess at just before 2 pm, Judge Pohl calls the proceedings to order. He wants to address the lawyers for both sides on an issue--but before he can do so, there’s a voice from the back of the courtroom. It appears that the speakers aren’t working, so consecutive translation cannot be heard. This takes a moment to sort out. Then there’s a little spat about whether there was enough time for lunch and prayers and whether the defense gets to use the entrance to the court it wants to use. He returns to Ruiz and completes his review of Ruiz's qualifications, saying--again--that he will consider the lawyer's resource concerns later on. He asks Ruiz to remind him, and Ruiz promises that he will.