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

9/11 Arraignment #5: The Defense Strategy Emerges

Benjamin Wittes, Wells Bennett
Saturday, May 5, 2012, 2:51 PM
Walid ‘Bin Attash is now seated, and, like the other accused men, free from restraints. The defense strategy has now clearly come into focus: The defendants refuse to speak or engage the court, while their lawyers insist on litigating treatment issues irrespective of the time of the proceeding.

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Walid ‘Bin Attash is now seated, and, like the other accused men, free from restraints. The defense strategy has now clearly come into focus: The defendants refuse to speak or engage the court, while their lawyers insist on litigating treatment issues irrespective of the time of the proceeding. Both serve to obstruct the arraignment--with Judge Pohl unable to speak to the defendants and unable to secure minimal cooperation from their lawyers to get the court’s business done. He is, however, undeterred. Addressing Nevin, KSM’s attorney, Judge Pohl once more states that he intends to move to the counsel advisement issue: Judge Pohl says he will advise each of the accused men of his right to counsel. And, Judge Pohl adds, should any of the accused choose not to respond, then he will apply the default rule, whereby current detailed counsel and learned counsel will be appointed. Nevin sees an opportunity to explain precisely why KSM has chosen to stay mum. But Judge Pohl says his reason won’t make any difference. Even if KSM has the best, most legally-cognizable reason in the world to ignore the court’s questions, what difference would that make? It would make all the difference in the world, says Nevin. No, it wouldn't, argues the judge. According to Judge Pohl, if KSM refuses to answer the court’s questions, then the judge has no choice but to appoint his current lawyers under the rules. That’s the result no matter what the reason for his silence may be. But, protests Nevin, my client wants the court to know, I want the court to know that . . . Then the court is suddenly a wash of jibberish, the muddled sound of the lawyer and the judge talking past one another, the translator trying to translate on the fly, and Walter Ruiz, Al Hawsawi’s attorney, complaining that he cannot hear the interchange. The cringe-inducing din subsides just enough to hear Nevin’s reference to the significance of the trials: Nevin reminds the judge that the world is watching the proceedings. The court stops him, and asks Nevin to answer in “bite-sized chunks.” It’s very hard to speak in such chunks, says Nevin. We had similar translation problems in the last iteration of the commissions. I came away from that promising myself that if put in that position again, I would object because I cannot advocate for my client when forced to speak like a robot. Judge Pohl notes his objection. But he also notes that the defense first objected to earphones for simultaneous translation. Now you object to this technique. I’m not that smart, he says. Have you got an Option C? Nevin doesn’t, but Ruiz does. He says he doesn’t know what translation technology is available, but perhaps the court could get a running translation on a screen or something like that. Judge Pohl says he’s not sure the court can do that. Ruiz points out that he asked for an Option C--and here was one. Nevin says he understands Judge Pohl’s point, but the same problems have arisen in the past. The translators have been unable to keep up. And the result was that he has to speak verrrrrrrrrrrrrry slooooooooowly. The point is that it is critically important that everyone with an interest in this case understands that there are valid reasons for KSM’s refusal to engage. May I articulate these matters, he asks? No, says Judge Pohl, and I’ll tell you why: Counsel are not witnesses. Whatever you tell me would make you a witness on a purveyor of what your client has said. Let me make clear, he says: There is no problem with the defense putting on all relevant evidence on any issue at the appropriate time. If that includes evidence of the detainee's treatment from some point until today, you’ll get that opportunity. Right now is not that time. I first must inquire about lawyers.  If you wish to tie that in with KSM's rationale for not speaking on other issue, right now, it doesn’t matter. If treatment issues come up later, we’ll do them then. Your client will have every opportunity to raise them. Nevin says he wants to cut to chase. He can proffer reasons for KSM’s refusal.  Judge Pohl says he understands Nevin’s position, but he disagrees. While Nevin has been speaking, a woman in full abaya has walked up behind him. She turns out to be Cheryl Bormann, learned counsel for Bin ‘Attash. She says she disagrees with the judge that it doesn’t matter what happened to her client this morning in assessing his in-court behavior. The world is watching, she notes. Judge Pohl reiterates that now is not the time to discuss the matter. Ruiz complains that the speakers and translators are overlapping and he can’t hear. Bormann says the treatment issues affect what the judge will do next. You need to advise them of their right to counsel, but you are asking them to make a big choice. You are asking them to make focused and intelligent decision. What has happened this morning, and over last eight years, makes that especially difficult, she says. How we got to this point, the judge responds, is a matter about which everyone disagrees. But how we got here doesn’t make any difference. If each accused refuses to answer, for whatever reason. . . Ruiz jumps in and complains again that the speakers and translators are overlapping and that he can’t hear. No matter how we got here, Judge Pohl insists, we are nonetheless at the same point--the point at which the judge has to go over the right to counsel. If you rectify--or at least attempt to rectify--some of issue that have arisen as a result of treatment of my client by JTF-GTMO, you may be able to complete the right to counsel task, Bormann pushes. Ruiz and Nevin have attempted to make that argument. I am here because the court is making a mistake. And what happened has affected their ability to focus in this proceeding. I am asking you to listen to these lawyers for these men when they say these men have been mistreated. Judge Pohl says he understands--and disagrees. Ruiz takes another stab at getting the motion to dismiss out in front of the arraignment. He says he wants to suggest an alternative procedure--one he says is similar to that used in federal courts. He says the court might consider asking the detainees to approve a limited appearance by counsel for certain specific hearing issues that have been raised. If you asked the detainees, he says, about counsel election for purposes of hearing the defective referral motion, for example, perhaps that would solve your issue--which is jurisdictional, he says.  After deciding that, he says, you can move forward. Again, Ruiz says, this is within your discretion. It may be a middle road. But Ruiz’s suggestion isn’t getting any traction from Judge Pohl, who mentions his duty and responsibility to inquire as to counsel rights as a threshold matter. If, he says, the accused wishes to be represented by counsel, but then later changes his mind, that is the accused’s option. And similarly, says the judge, if for some reason as I discuss counsel rights today, it becomes necessary to revisit this advisement of rights, then I will do that too. However, the rules are clear: Until I get a counsel election from the accused, or a refusal to waive such election, then counsel has no standing to argue on behalf of the accused on any issue. We therefore will proceed with the normal advisement process. If I receive no response from Mr. Mohammed, then counsel will be appointed according to the usual rules. He then turns to a colloquy with the silent detainees as to their right to counsel.

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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