October 23 Session #2: Presence Lite, and an Untimely Submission From the Convening Authority

Judge Pohl calls our proceedings to order, and notes Al-Nashiri’s absence. That prompts Prosecutor Anthony Mattivi to make his record.  The lawyer asks his witness, our by-now-familiar-from-last-week-but-still-unnamed JTF-GTMO staffer, whether the latter advised Al-Nashiri of his right to attend, and whether the detainee waived the right in writing.  The witness answers yes on both counts, and adds that Al-Nashiri decided not to come in order to protest the detention camp’s continued use of belly chains to restrain him.  Mattivi doubts whether, in fact, belly chains would be employed in order to bring the accused to court, and asks the witness about the issue.  That’s when LCDR Stephen Reyes objects and notes that the legal question of the accused’s presence is scheduled for argument later.  This inquiry, he says, is supposed to be narrow and pro forma.  It doesn’t call for any questioning along the lines that Mattivi seems to pursue.  The defense lawyer adds that Al-Nashiri wants to attend, but that the persistent use of chains deters him from doing so.  Eventually, the witness testifies that Al-Nashiri would have known that belly chains would not have been used to bring him here today.  The court finds that Al-Nashiri’s absence is knowing and voluntary. The court deals swiftly with our first docketed matter, one that the parties briefed and argued already: AE77, the defense’s motion to compel the funding of a memory consultant for Al-Nashiri, Dr. Elizabeth Loftus.  Earlier, the Convening Authority had denied the defense’s ex parte request for funds with which to pay the expert, and Al-Nashiri’s lawyers challenged the denial during the commission’s July 17 session.  Two days after argument, however, the Convening Authority’s legal advisor filed an “amicus” brief, which set forth the Convening Authority’s view that, among other things, the defense had demonstrated neither Loftus’s necessity nor the need to consider its request ex parte.  Judge Pohl finds the amicus submission untimely.  It also takes a position at odds with that of the prosecution and defense.  This is usually a two-party exercise, the court explains.  He’s not interested in hearing from a third party at this stage, and thus won’t consider the amicus submission at all.  The court sticks to his original plan of deciding the case on the briefs and arguments presented already. That was easy.   Presence---for real---is our next issue (AE 99 and 106).