October 15 Commissions Session #5: the Right to Be Present and the Obligation to Attend, Part Two

Lunchtime comes to a close; we thus return to presence and absence matters, and a few concluding remarks by defense counsel.  Lawyers for KSM, al-Hawsawi and Bin Attash contribute a few comments. The latter's remarks lead to a heated exchange.  On behalf of Bin Attash, Captain Michael Schwartz invokes Rule 804.  Its plain language, the lawyer argues, does not distinguish between capital and non-capital cases.  Had Congress wanted to make that distinction, it could have---but it did not.  The “death is different” distinction just doesn’t exist here, according to Schwartz.  More relevant, in his view, is detainee abuse, including forcible extraction and . . . torture.  We have to talk about that, the lawyer insists.  That draws an immediate and fiery interruption from Judge Pohl: no, you don’t, says the court, and you won’t.  The issue of mistreatment---including forcible extraction---is not before me, he explains.  The lawyer pushes back a bit, claiming that physical and emotional strain are relevant to an accused’s decision to come to court.  That’s still not good enough for an angered Judge Pohl.   The issue is whether the accused have a right to be absent, he chides the lawyer, and not the reasons for that right’s exercise, period.  Treatment is simply not relevant.  The defense attorney backs down a bit, and returns to the plain text of the rule---which, he says, supports an accused’s right to be absent. The court says it will rule on presence matters in writing, today.  In the meantime, Judge Pohl says he sees some inconsistencies in the statute and the rule regarding the accused’s attendance.  That said, he believes the accused have a right to voluntarily absent themselves after arraignment, and prior to assembly.  So how to proceed?  Exercise of the right to be absent during this session (i.e. that continuing through Friday) the court explains, will depend on each accused’s understanding that he has a right to be present, and the potential consequences that an absence might bring about.  The court will address those issues with each accused on the record; the lawyers, Judge Pohl adds, must also explain these concepts to their clients.  At the same time, should any accused elect not to attend future proceedings, then he must sign a written, daily waiver of the right to attend. The prosecution and court both are concerned about defense counsel’s ability to make representations to the court about an absent defendant’s ongoing waiver of the right to be present.  Some of the defendants have not said they wish to be represented by their detailed lawyers, and thus been assigned lawyers pursuant to military commission rules.  Connell, for example, had told the court during arraignment that he could not speak on behalf of Aziz Ali regarding the government’s charges; if so, then how could be purport to convey Aziz Ail’s preferences, one way or the other, about attending a hearing?  Judge Pohl argues that the default election of counsel should trigger an ability on the part of Connell and those in like circumstances to make representations about the waiver of presence rights.  Walter Ruiz chimes in: he isn’t particularly keen on having anyone from JTF-GTMO hand a waiver document to his client, and is worried about having daily access to his client, so as to permit the completion of waiver forms. We’re in a recess, during which the prosecution and defense will attempt to agree on a questions that the court will ask of the defendants, on the record, about their right to attend commission sessions.