October 15 Commissions Session #6: The Accused Waive Their Rights to Attend

Our brief recess comes to a close.  It appears Judge Pohl has drafted a series of possible questions regarding the accuseds’ intention to waive their presence rights.  And yet despite earlier indications to the contrary, the parties have not yet reviewed or edited Judge Pohl’s draft; he thus seeks input from prosecution and defense, and both enthusiastically take him up on that offer.  The Chief Prosecutor, for his part, thinks the best course is for Judge Pohl to proceed through the choice of counsel colloquy once more, as he did during arraignment; and if no lawyer is selected, then the court should give a modified admonishment regarding the risks of proceeding pro se---one of which is exercising, unwisely, the right not to attend court sessions.  All that on top of the requirement that each day, the defendants will have to affirm their continued desire not to appear at this week's hearings. Contributions from the defense: David Nevin, KSM’s lawyer, doesn’t like the idea of treating presence differently from other issues on which assigned-by-default counsel might have to make representations on behalf of the accused; Cheryl Bormann also wants greater clarity about what an accused, having waived his right to attend a hearing, must do in order to renew the right and attend a subsequent one.  Martins jumps in with another point.  Procedurally, how will an absent accused change his mind---that is, what mechanism permits him first to waive the right to be present, but to elect nevertheless, later that day, to attend court?  Then there’s Harrington: the draft, he says, does not literally contain the words “waive,” or “waiver,” but it must contain such things in order to work.  Judge Pohl agrees.  Ruiz also has an idea.  If, he says, an accused has waived the right to be present but then changes his mind, then he should be able to inform the guard force, in writing, about the change and his desire to attend court.  That raises a related translation issue, too.  The court takes these comments into account. The text hammered out, Judge Pohl proceeds to ask each accused about their presence rights---for purposes of tomorrow's hearing, at least.  First up is KSM, who, when Judge Pohl asks him if he understands his rights . . . doesn’t make a sound.  Rather than repeating himself, or pressing KSM or his lawyers about the reasons for his silence, Judge Pohl briskly moves to Al-Hawsawi. He answers in the affirmative, when asked if he understands his right to attend all commission sessions.  A long pause follows when the judge asks if al-Hawsawi also understands that the trial might proceed in his absence, if there comes a time when al-Hawsawi is no longer in custody of the United States.  The press corps pauses to contemplate this question, and its meaning.   The message quickly becomes clear: bear in mind, buddy, if you escape Guantanamo, we might try you in absentia. While al-Hawsawi huddles with his lawyers and a translator, Judge Pohl moves to Binalshibh---who answers the court’s questions almost entirely in the affirmative, and in English this time around.  Do you understand your rights? Yes. Waiving them voluntarily?  Yep.  What if you come not to be in U.S. custody?  As before,  Judge Pohl cautions that the trial could go forward if Binalshibh escapes Guantanamo---though, of course, he emphasizes that he is not implying that Binalshibh will escape Guantanamo before the case is resolved. Does Binalshibh understand that?  Yes he does.  Ditto al-Hawsawi, who has wound up a quick chat with his attorneys.  The court’s penultimate inquiry is with Aziz Ali (aka Ammar al-Baluchi), who knowingly waives his right to be present, too. This brings Judge Pohl back to KSM, who is now in a more responsive mood. He, too, says he understands his right to attend, his corollary ability to waive that right, and the risks that attend a waiver---though he adds that he doesn’t think there’s any justice in this court. Lo and behold, we've come to 16:00, the defense’s chosen stopping point for the day.  Before Judge Pohl calls a recess, Bormann reminds him of the untenable health conditions in the base’s permanent defense offices, and the cramped, temporary workspaces provided to the defense in the meantime.  These will form the basis for a motion that Bormann will file, and that some other accused will join. See y’all tomorrow.