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9/11 Arraignment #6: Silence is Golden

Benjamin Wittes, Wells Bennett
Saturday, May 5, 2012, 3:21 PM
Judge Pohl turns to Mohammed’s attorneys and his right to counsel. Mr. Mohammed, he says, pursuant to the Manual for Military Commissions, you are today represented by two military lawyers, Derek Poteet and Jason Wright, your detailed counsel. Do you understand this? There’s a pause – the first of many, as we’ll soon see – as the court and counsel wait for the defendant’s responds.  KSM doesn’t give one, and Judge Pohl notes as much.

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Judge Pohl turns to Mohammed’s attorneys and his right to counsel. Mr. Mohammed, he says, pursuant to the Manual for Military Commissions, you are today represented by two military lawyers, Derek Poteet and Jason Wright, your detailed counsel. Do you understand this? There’s a pause – the first of many, as we’ll soon see – as the court and counsel wait for the defendant’s responds.  KSM doesn’t give one, and Judge Pohl notes as much. Very well, he continues, detailed counsel will be provided to you. No response. Pohl adds that Mohammed also has the option to request different military counsel; Mohammed has the right to ask the Office of the Chief Defense Counsel to provide any lawyer from its staff, to the extent they are available. Crickets again from Mohammed. If, Judge Pohl goes on, your request for different military attorneys is approved, then Poteet and Wright no longer will be available to represent you. Do you understand this? Silence. Pohl next asks if Mohammed wants a different military lawyer than that detailed. No answer. In addition, Judge Pohl continues, you have the right to one additional counsel, who is learned in the law of capital cases and who may be a civilian.  Do you understand that? No answer. You also may elect a civilian lawyer, the court continues, who will serve at no expense to the government. To be qualified, he or she must be admitted to a bar, not have been the subject of disqualification action, possess a secret-level clearance or higher, and agree to obey the rules of military commissions. If an elected civilian lawyer represents you, then your detailed counsel will stay on, too--unless you choose to forgo that option.  Do you understand? No answer. Do you have any questions for me about your right to counsel? No answer. Judge Pohl inquires whether Mohammed in fact wishes to be represented by David Nevin, his learned counsel, and the military lawyers. Silence. Judge Pohl inquires about whether Mohammed desires other qualified counsel. Silence. The judge asks about who should be considered lead counsel, in the event of a disagreement among the defense team. Mohammed does not so much as move, having almost this entire time gazed at counsel table. Okay, says Judge Pohl. Given the accused’s failure to respond and to make an election, he will for now be represented by detailed military counsel and David Nevin, his learned counsel.  Judge Pohl adds that he’ll review Nevin’s specific qualifications later. The right to counsel and election inquiries then proceed along almost identical lines, as Judge Pohl moves from one accused to the other. We note here only where things diverged from the script that KSM wrote. We’re only a few minutes into Pohl’s unanswered questions regarding Bin Attash’s right to counsel, when an objection comes from Captain Michael Schwartz, on behalf of his client.  The lawyer reminds Judge Pohl that the Chief Defense Counsel was never staffed as an officer or a flag officer. Judge Pohl is skeptical: What does this have to do with the right to counsel? If you have motions about resourcing, then I’ll hear those at the proper time, he says. Ruiz, Al Hawsawi’s military attorney, once again says he’s having trouble hearing because of the translators. Judge Pohl manages, over the translation cross-talk, to make one thing clear--again: Everybody will have ample opportunity to litigate whatever they want, he says. If there is an issue of resources or staffing, then those can be addressed, too.  But now, the court insists, is not the time.  Right now, says Judge Pohl, I am going to go over the rights to counsel with the accused. The judge tells Schwartz that he will not conduct the proceedings piecemeal, particularly when there is no obvious connection between the right to counsel and counsel’s request. If a pertinent issue arises, though, the judge says that he will consider it later. The lawyer insists that his request indeed pertains to his client’s counsel rights: His client cannot request someone of equal rank to be his preferred military lawyer, as is his right under the commission’s rules. Fine, says Pohl: if you have an issue, make a motion and I’ll get to it at the right time. Schwartz says his sole purpose was to note the issue for the record. That matter resolved, Pohl returns to the questions regarding the rights to counsel for each silent defendant. Some time later, John Harrington, the civilian lawer for Ramzi Binalshibh, adds to the objections that were raised before by Schwartz and the other lawyers. The lawyer adds that his client’s name properly is pronounced with an extra syllable--it sounds like “been-all-sheebah,” he says. Harrington understands Judge Pohl’s approach, but claims that his client cannot intelligently answer any right-to-counsel questions until confinement and related issues have been addressed. Under the rules, the lawyer says, we are not allowed to repeat anything that our client has told us, because such information is classified. We cannot repeat it. At least not at this point, Judge Pohl adds. Harrington then mentions a second problem:  detailed counsel, Kevin Bogucki, just recently was been detailed; up to that point, Binalshibh had not had detailed counsel for a long time.  Consequently, Harrington’s client has not been able to speak to Bogucki, and to determine whether Binalshibh wishes to have Bogucki as detailed counsel. Judge Pohl says that Binalshibh of course retains the option later to reject Bogucki as counsel, should he so wish.  Harrington reiterates his desire not to proceed unless the matters of confinement and treatment are addressed. James Connell, civilian for Ali Abdul Aziz Ali, rises in connection with his client’s one-sided exchange with the judge--but, oddly, not to object or to argue points similar to those raised before. Instead, he tells the court that the court had noted that some of the accused had worn the court-provided headphones for translation, but taken the headphones off intermittently.  Connell just wants the court and others to be clear that Ali in fact never had his headphones on at all, and has not since. Okay, responds Judge Pohl. Do I need to go over anything with him? No, Connell answers.   Then its back to the election inquiry: Pohl asking, the defendants saying nothing, and Judge Pohl resorting to the default rule that current counsel will be appointed for the accused. When the court has asked whether Al Hawsawi wishes to select other qualified counsel to assist him, his counsel, Ruiz, rise. It turns out that the accused has made such a request before, one that Ruiz wishes to add to the trial record. Ruiz explains that Al Hawsawi had sought to have David Ruhkne, an OCDC-certified, qualified death penalty attorney, to represent him. But, says Ruiz, the Convening Authority rejected his client’s request. The request and the denial are what Ruiz wishes to add to the record, and to have Judge Pohl consider. Both are directly relevant to the right to counsel inquiry, he says. Ruiz wants to protect the appellate record on that issue, and stresses that he wants that record to indicate that a prior request for other counsel was made and denied. Had that not happened, Ruiz argues, then perhaps Al Hawsawi would answer Pohl’s inquiries about counsel rights directly, rather than having his wishes conveyed indirectly to the court by Ruiz. That’s confusing for Pohl, by the look of things. The accused wants the denial to be part of the record, sure. But isn’t his own non-response also part of the record? I asked him if he wanted a different lawyer, Judge Pohl explains, and Al Hawsawi exercised his right not to speak. Why can’t Al Hawsawi simply answer? Well, says Ruiz, he is exercising his right to silence, while speaking through me. Judge Pohl says he understands Ruiz’s position, but again says that the right to counsel---and the decision to exercise it or not--is personal to Al Hawsawi alone. Only he can express his wish to have a different lawyer. That having been said, Judge Pohl honors Ruiz’s request and makes the failed request a part of the case’s record. Request noted, and we’re back to the right to counsel.  Addressing the accused, Pohl asks al Hawsawi if he wishes to proceed with the lawyers detailed to him.  And . . . surprise! He does not answer.

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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