Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

9/11 Arraignment #4: Bin 'Attash Unbound

Benjamin Wittes, Wells Bennett
Saturday, May 5, 2012, 1:46 PM
When the audio comes back on, Judge Pohl is asking counsel for Bin ‘Attash, Capt. Michael Schwartz, whether he knows why the feed went out. There is certain material, he says, that is not to be disclosed unless properly cleared. Schwartz says he understands. I don’t want the proceedings starting and stopping; you know where the lines are, Judge Pohl says. If you want to litigate classification issues, that’s okay, but you cannot blurt things out. Schwartz says he thought he knew where the line is but isn’t sure any more. He knows that statement was not classified, he says.

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When the audio comes back on, Judge Pohl is asking counsel for Bin ‘Attash, Capt. Michael Schwartz, whether he knows why the feed went out. There is certain material, he says, that is not to be disclosed unless properly cleared. Schwartz says he understands. I don’t want the proceedings starting and stopping; you know where the lines are, Judge Pohl says. If you want to litigate classification issues, that’s okay, but you cannot blurt things out. Schwartz says he thought he knew where the line is but isn’t sure any more. He knows that statement was not classified, he says. But it now looks like the line is embarrassment for the government. Let’s not debate that, says the judge. Your position may be that information is not going out to the public because of embarrassment. I get it. But if we get near that line, I want it done in an appropriate way. Standing up in an arraignment and getting close to that line is inappropriate. If you say that the earphones for Bin ‘Attash don’t work, what is the alternative? Schwartz says his client is in restraints. We didn’t discuss things today, he says. We are not allowed to be alone, to talk privately. There is no opportunity to do so here. Judge Pohl warns him to stay on the topic--which is earphones. Our request, he responds, is to have Bin ‘Attash unshackled so that he can place the earphones back into his ear when they fall out. Judge Pohl says that he assumes without deciding that the reason Bin 'Attash is in that restrained condition is that he did not voluntarily come to court for the arraignment--where his presence is required. That is my assumption as well, responds Schwartz. Are you telling me that if released from the shackles, he will comport himself properly, Judge Pohl asks? Schwartz asks, in response whether the judge is asking him to vouch for his client. Judge Pohl says that Bin ‘Attash is in his current state because of actions he took outside of the courtroom, and the judge wasn’t there at the time. I see four unrestrained defendants and one restrained defendant, and I'm not going to order him unrestrained without some assurances. Schwartz says that his guess is that Bin 'Attash will be behave. Judge Pohl says he’ll ask him--and he’ll have to answer if he wants to be unrestrained. Mr. Attash, he says, can you hear me? Silence. Can he not hear, the judge asks Schwarz, or does not want to answer? I can’t answer that, Schwartz says, though he notes that the client has earphones. Judge Pohl says that he assumes that the headphones work and that Bin ‘Attash is refusing to answer. Does Schwartz want to talk to him? Schwartz says he does and chats briefly with Bin ‘Attash--who is sporting the biggest and most interesting hairstyle of the defendant group. He returns to the podium and announces that his client is in pain because of the restraints. He is not comfortable. Will he agree to comport himself appropriately, and say so on the record, Judge Pohl asks? If he will, I will consider removal of the restraints. Schwartz says he doesn’t know. Then why should I remove restraints, Pohl asks? I want him to tell me that he will comport himself appropriately. And I can see why that would seem reasonable, Schwartz says. But there are many serious reasons why he would not cooperate with this court. His behaviors outside of court were reflections of issues he is dealing with. He has a prosthetic leg. Judge Pohl says, once again, that he is not litigating issues right now. Your client said he does not want to comply with the directions to obey the rules, and he is therefore restrained.  If he will tell me that he will act with decorum, I’ll consider it. The behavior that led to his restraint, Schwartz says, was because he didn’t want to come to court, but now he is in court. And the position you are putting him gives him the choice of pain or waiving his right to remain silent. Judge Pohl is incredulous. The right to remain silent? You mean the right to not obey the rules? Where is that right in statute or in the Constitution--or anywhere? Schwartz says he is glad the court is considering the Constitution. Avoid the editorial comments, Judge Pohl shoots back. Things will go faster. I believe that my client has the ability to sit and participate or to sit and not participate, Schwartz says. That should be up to him. You are making him participate. He has to answer one question, Judge Pohl says. He has to say that he will behave appropriately. His position is not to cooperate for many reasons which are longlasting, says Schwartz. Yes, Judge Pohl says impatiently, but those reasons are not on record because he is not cooperating, so all I am getting is your proffer. If he wants to be unrestrained, he has to behave. That’s his choice, not mine. The pain issue aside, Schwartz says, he cannot hear without the guards having to fix his earplugs. At this point, Ruiz breaks in saying that the issues Judge Pohl is discussing with Schwartz connect with issues related to each of the accused. That is why, he says, we asked the court to hear the defense motion to dismiss over alleged defects in the referral. The defense, he says, collectively sought to put this issue before the court. That is why we asked the court to reach the merits earlier, he says. You have discretion to consider it. The Supreme Court thinks so. You’re seeing a reflection now of your reluctance to address this legal issue, but the Supreme Court says you have discretion to hear the issue as a threshold matter. I didn’t cite the relevant case, he says: U.S. v. Thompson, at 94 U.S. 829. That was a criminal case regarding indictment and jurisdiction. And it applies here because this court is not properly convened as a result of the defects in the referral. Judge Pohl has had enough. I’m going to say this one more time, he says. There is an order we will follow. First of all, I have no authority to do motions before counsel elections. Second, if it’s a matter of my discretion, I say we’ll do it at end. More generally and going forward, he says: When I rule, for either side, we’re done. If you have something new, I’ll reconsider. But to stand up and tell me again what you did earlier, it’s unproductive. You’ll get an opportunity to make your argument. But I told you that ten minutes ago. And ten minutes later you decide to raise the same issue again. We’ll get to it--at the appropriate time. Are we clear? Schwartz declares again that his client is in pain. The guards have had to replace his headphones for the third time. And all of a sudden Ramzi Binalshibh is standing up. He stands there for a moment, kneels, and then seems to be praying. After a while, he rises again, but then leans over again, kneels again, and is again on the floor praying. Judge Pohl notes this for the record--and that Binalshibh is not wearing his headphones. He asks whether the other defendants have their headphones on. If not, he says, can he assume that they have chosen not to hear? Nevin says he has a problem with the word “choose.” But then he seems to switch subjects. He’s concerned now, he says, because the warning light from the court security officer concerning classified material just went on. Nevin says he gathers it went off because the word “torture” had been used--which it actually didn’t appear to have been. I’ve understood for years, he says, that allegations concerning torture were not classified. Judge Pohl asks what this has to do with anything. You may be explaining why they are not participating, he says. And I’m not saying that we won’t discuss that at the right time.  But to run a military commission with accused who do not speak English, they have to have the opportunity to listen to the proceedings in their native language. If they won’t cooperate with that, what do you want me to do? Nevin responds that Judge Pohl had said the word “choose.” And not using the headphones has to do with the torture that was imposed on these men. It’s not choice. What’s the remedy then, Judge Pohl asks? What’s your proposal for an alternative? I don’t have a suggestion, says Nevin. I can tell the court that KSM graduated from a U.S. college and has some currency with English. One option is to question whether they must listen in their native language. I cannot force the client to put headphones in his ears, to pay attention, or not. I cannot force him or make suggestions to the court. I’m saying that you are seeing the product of the way they were brought to court, the clothing issues, and a number of issues that arise out of their treatment in the camp over the past 12-18 months. If the court wants to address the matter, in any way other than a formalistic one, it has to address conditions. This behavior does not exist in the abstract. The first thing I have to hear from each detainee, repeats Judge Pohl, is who they want as a lawyer. Mark Martins rises with a suggestion. We propose, he says, bringing in consecutive oral translators that could speak out loud to the whole court. That would at least allow the opportunity to get on the record that translation is being provided to the accused and can be heard--without headphones. How long would that take to set up, Judge Pohl asks? Martins says he would need a brief recess--which Judge Pohl orders. Proceedings resume with the aid of a consecutive translator, whose booming-in-the-auditorium voice interrupts matters every few seconds to translate the courtroom chatter into Arabic.  This is then broadcast aloud to the accused and all others present in the courtroom.  The pauses it induces makes it much easier to take notes. (There’s some movement at one of the defense tables: it seems Ali Abdul Aziz Ali is standing up.  He sits down a few moments later.) Judge Pohl returns to Schwartz and the quesiton of Bin 'Attash’s willingness to behave if his restraints are removed.  The rule, Judge Pohl explains, is that restraints generally are not required, unless the accused’s behavior demonstrates otherwise.  With this, the judge pauses for consecutive translation into Arabic. Indeed, the parties will be speaking, then pausing, then speaking and pausing again, for hours to come--the exception being when attorneys, the court, and the translator all talk over one another.  Its a special sort of cacophony. Translation made, Pohl inquires of Schwartz: You’ve indicated that your client will conduct himself appropriately, if his shackles are taken off?  He will, says the lawyer. The court takes the lawyer at his word--and, by implication, Bin 'Attash at his word--and thus directs the guard to remove the restraints.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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