9/11 Arraignment #3: KSM Stays Mum

Judge Pohl turns to David Nevin. Let’s start with your client, he says. You have detailed counsel, he says to KSM. KSM does not answer. Mr. Mohammed, he says. Can you hear me? There is a long pause. Nevin says that he believes that his client will decline to address the court. KSM is, Nevin explains, deeply concerned about the fairness of these proceedings and about counsel’s ability to communicate with him. There are limitations on what we can talk about. So he may or may not speak, Nevin declares. And if the court addresses him and he does not speak, it may reflect not a technical problem but a choice not to communicate with the court. Judge Pohl rolls with this particular punch. Just to make sure, he says, are you convinced that the translation in his earphones are okay, he asks? No sir, Nevin responds. I’m not. Well, Judge Pohl responds, we have to make sure that’s working first, right? All sorts of people can verify if they are working. Nevin says he isn’t sure. He was involved in the commissions in 2008, and the translations were notoriously inaccurate and late. Judge Pohl says that he wants to make sure that KSM understands him. If he doesn’t understand him, that’s a problem, so the court needs to make sure he is choosing not to respond. His only option, he says, is to have someone listen to the headphones and to make sure that they work--unless, that is, Nevin has an alternative to propose. Nevin says he doesn’t have an alternative solution to propose. He doesn’t think KSM will respond. Right, Judge Pohl says, but I want to make sure he’s hearing this translation. Let the record reflect, he says, that his earphones were in his ears, and he took them off. Do you want to talk to your client, he asks Nevin? No, Nevin responds, but I will check about the earphones if the court asks me too. It’s your choice, responds the judge. But if he refuses to listen to the earphones and to answer--and I will ask him one more time if he understands--I will assume that he makes the choice not to answer. And we will go to default elections. The default is that he gets detailed lawyers and learned counsel and a plea of not guilty. Nevin asks: The court would enter a plea? It would cause him to waive? No, Judge Pohl says. The plea would be deferred. But the defendant cannot choose not to participate and to frustrate the normal course of business. If KSM or the other defendants choose not to respond, which is step 1 in the trial procedure, we then go to the default mode of having lawyers. And if he later ultimately refuses to enter a plea, a not-guilty plea will be entered on his behalf. Nevin says his client has right to remain silent. He does, Judge Pohl agrees, if he understands the ramifications. But if he refuses to put the earphones on, he then makes the choice to be uninformed by the commission. He can choose that. But he does not have the choice to frustrate the commission going forward. Nevin says he understands. KSM may or may not have any intention regarding the default elections Judge Pohl has spelled out; he just cannot say whether that is his client's intention, he says. Reponds Judge Pohl: It’s his choice. He can participate and make elections or not participate and have his elections made for him. Nevin says he understands. Will KSM put the headphones back on? Nevin says he doubts it. He turns to KSM to ask--and the sound goes out. It is out for about a minute, during which time Nevin returns to the podium and there is some back-and-forth between the laywers and Judge Pohl. We are informed that the blockage was intentional--done by the court security officer to protect classified information.