October 15 Commissions Session #2: Another Learned Counsel for al-Hawsawi?

That’s it for procedural stuff; we thus return to Ruiz, and his client’s desire for the appointment of another lawyer with a background in capital cases. Before Ruiz can begin, Judge Pohl reminds the lawyer that, during arraignment, al-Hawsawi did not indicate any desire for additional counsel, learned or no. Is al-Hawaswi now prepared to tell the court, from his own mouth, that he wants another lawyer?  If he isn’t, the court says, then the issue isn’t ripe.  Ruiz notes that if al-Hawsawi indeed will speak, the question of secrecy comes into play: the defense did not file any warning regarding the possibility that al-Hawsawi might reveal classified information.  For his part, Judge Pohl disputes the relevance of the classified information rules, when the sole question is whether, in fact, al-Hawsawi wants another lawyer appointed and can convey his wish to the court.  Ruiz confers with his client a bit.  It turns out al-Hawsawi will tell Judge Pohel what he wants, lawyer-wise. The accused doesn’t recall the court’s questions, at arraignment, regarding the right to counsel.  For that reason, Judge Pohl summarizes the right once more, while pausing intermittently to ask whether al-Hawsawi has understood.  With that out of the way, al-Hawsawi names the lawyers he wants: Ruiz and another person, Learned Counsel David Ruhnke.  Regarding the latter, Ruiz points out that the Convening Authority has denied his request to add Ruhnke to the defense team; that the commission has discretion to appoint counsel who are experienced in capital cases; and that in the civilian context, multiple learned counsels are appointed in complex capital matters.  Judge Pohl is curious: is this about the need for capital-case expertise, or about the need for more staffing?  Ruiz acknowledges that he has “support counsel” available to him---people who perform discrete research, writing, and other tasks---but says al-Hawsawi needs a full-time death penalty lawyer.  Can the latter do discrete stuff, too?  Sure.  But typical staff lawyers aren’t experienced in capital cases, and aren’t assigned to al-Hawsawi alone.  Judge Pohl responds with a procedural question: If I rule for you, can I order the appointment of another capital lawyer, or of Mr. Ruhnke specifically?  The latter, says Ruiz. Robert Swann, a lawyer for the prosecution wants to add a few words.  The first few have to do with the pertinent legal authorities, which he reads aloud.  He then proceeds to defend the Convening Authority’s determination that Ruiz alone sufficed to defend al-Hawsawi as Learned Counsel.  There’s no requirement that two Learned Counsels must be appointed.  There’s instructive authority, sure---like ABA Guidelines in Capital Cases---but these don’t bind the commission at all.  Indeed, Swann doesn’t think the commission has discretion to order the appointment of additional learned counsel.  (This strikes Judge Pohl as incompatible with the government’s brief, which said the court had such discretion.  Swann then chucks the brief, and reiterates that Judge Pohl lacks the power to appoint Ruhnke to the case.)  And, Swann says, the defense has asked for five attorneys to assist Ruiz with al-Hawsawi’s case: the call for an additional Learned Counsel thus appears to be premature. In any case, the defense has plenty of resources, including backup lawyers---indeed, that is what led the Convening Authority to deny Ruiz’s request initially.  The mention of discretion prompts a question from Judge Pohl: If Congress wanted to deprive me of discretion to appoint an additional Learned Counsel, why didn’t it say so?  The prosecutor fumbles a bit, but again points to the availability of sufficient resources to the defense. The court thus brings our first motion to close, by taking the request under advisement.  We pause, as per usual, to deal with technical stuff.  James Connell want the English translation broadcasted over the courtroom’s loudspeakers.  His client, Ali Abdul Aziz Ali, can’t hear the English translation very well.  That option doesn’t seem to be available, but the judge says that---provided the accused agrees to behave---he can move a bit closer. David Nevin, attorney for Khalid Sheikh Mohammed, also has a tiny, tiny request: he wants to leave the courtroom for a bit, while the proceedings continue.  That’s okay by Judge Pohl. We’re in a brief recess.