October 23 Session #3: Presence, Fully Discussed, and Proceedings, Quickly Recessed

AE99 is next on our agenda.  It asks whether, and under what circumstances, Al-Nashiri may waive his right to attend pretrial proceedings in this capital case.  (There are also related motions, including AE106.  There, the defense asks the court to postpone the presence issue, so that doctors can evaluate Al-Nashiri and determine the effects that compelled attendance---even for the limited purpose of inquiring into his continued wish not to show up---might have on him.) Notwithstanding this morning's skeletal waiver discussion, argues Chief Prosecutor Mark Martins, the court generally should require the accused’s presence, pursuant to Section 949d of the MCA 2009.  To interpret the statute, he analogizes to Rule 43 of the Federal Rules of Criminal Procedure.  Congress could have talked about waiver in Rule 43, but it didn’t; moreover, he argues, there’s no distinction between custodial or non-custodial status, or between the pre-trial or trial phases.  Presence thus is generally obligatory, as a matter of plain language.  He shifts quickly to Section 949a, another provision dealing with presence.  The latter has to do with the defense’s “right to be present” he acknowledges---but there’s no “right to be absent.”  True, one can waive the former, by conduct or by other means, but the court must indulge every presumption against that.  Wait, asks Judge Pohl, if you are correct about Section 949d, then why does Section 949a come into play at all? And in any event, if the accused has a right to be present, why can't he knowingly waive it? The prosecutor appeals to the judge’s discretion.  He explains: if you’re going to create a situation in which the accused won’t be present, then you should preserve the government’s interest to the greatest extent possible.   The lawyer notes that today, the court’s inquiry was both brief and quite narrow---there was no questioning of the accused personally, for example.  Would it alleviate the government’s concerns if Al-Nashiri was brought here, and addressed on the record?  The Chief Prosecutor finds that necessary but not sufficient: the government also desires, among other things, weekly revisiting of the waiver issue, in open court, and in great detail.  The text of the relevant commission Rules, 803 and 804 must next be addressed.  The rules are admittedly jumbled, Martins says---their comments in particular----but they nevertheless must be interpreted in light of the relevant statutory provisions.  The latter's text controls, and generally requires Al-Nashiri to sit alongside his lawyers in the courtroom.  The leadoff argument ends with a word about the case law governing waiver in capital cases.  In these, Martins says, courts went to great lengths to protect the presence right, and indeed rejected the defendants’ requests to waive.  The strong suggestion is that in a death case, the accused may not waive his right to hear the proceedings in person---something the court openly doubts.  The Chief Prosecutor reiterates the need for a robust waiver colloquy with Al-Nashiri, and then sits. LDCR Stephen Reyes sees no need for such an elaborate procedure---among other things, because a capital accused can waive the right to be present, under circumstances already present in this case.  This matters greatly, given Al-Nashiri’s prior mistreatment at the government’s hands.  Prosecutors now ask Reyes’ client to be in the courtroom, involuntarily, and to listen, day after day, to evidence and argument about his torture.  That’s perpetual retraumatization.  Enter Judge Pohl: prior to assembly, the accused can waive his presence.  How often does that waiver need to be on record?  That strikes the court as the true issue in dispute.  A daily waiver, Reyes answers, is a nonstarter.  Judge Pohl next notes that the issue before him is purely legal in nature; what’s the relevance of Reyes’ expert evidence about what Al-Nashiri would experience if he were forced to attend court against his will?  It goes to the circumstances under which you can find a voluntary waiver in this case, says Reyes.  Al-Nashiri is a victim of torture, who shouldn’t be forcibly extracted and brought to court each day, for the sole purpose of waiving his right to be there in the first place. The court is visibly interested in something like this: an on-the-record colloquy with the accused during a session’s opening; testimony from JTF GTMO personnel about waiver thereafter; and afterwards, as the case progresses, periodic and on-the-record checkups with the accused about voluntariness.  That’s not strictly required, argues Reyes; the latter sees more flexibility for the court.  It is all about the particular facts and circumstances of this case, in the lawyer's view, and the adverse impact upon this accused.  What if, because of his trauma, Al-Nashiri needs to waive his rights someplace outside of the courtroom?  Or what about the harsh and traumatizing methods employed by JTF GTMO, in transporting Al-Nashiri to the ELC?   Whatever the answers, Reyes adds that there’s plenty evidence of waiver in this case already.  The accused knowingly and voluntarily waived his right to attend, in writing and in the presence of a military officer.  To the extent the court finds all that inadequate, Reyes urges the court to consider the experts’ testimony regarding Al-Nashiri’s torture.  His client shouldn’t be traumatized, repeatedly, simply to ensure that Al-Nashiri's ongoing absence is a voluntary one: “Don’t burn the village down in order to save it." It has been six months since I last advised Al-Nashiri of his rights in person, observes the court.  The prudent course thus would be to advise the accused of his rights in open court once more, now.  For Reyes, prudence means something different.  It means accounting for the evidence of Al-Nashiri’s mistreatment before adding on to the legally satisfactory waiver procedure we've gone through already.  Don’t have Al-Nashiri forcibly removed from his cell and brought to court, Reyes argues, simply to help the government in its effort to bolster the commissions’ legitimacy.   Concluding, he once more urges the court to delay presence matters until his experts have examined Al-Nashiri.  (Relatedly, Reyes asks the court to take up a request not yet docketed, AE135, in which the defense seeks to have the experts’ examination conducted in accordance with international protocols for torture victims.) Martins rises in reply and speaks briefly.  The public interest in presence is real, he argues.  Reyes’ suggestion, that the prosecution seeks to bring Al-Nashiri to court in order to create the false appearance of fairness, is nothing more than name-calling.  And regarding extraction, force need not and will not be deployed unlawfully, in order to bring a recalcitrant accused to court.  In fact, Al-Nashiri repeatedly has appeared here, and voluntarily, as the court has noted.  Also bear in mind the accused’s other rights, to effective assistance of counsel and to confrontation.  Violations of the presence right could in turn lead to violations of these latter rights, and generate appellate and post-conviction claims.  Martins concludes as he began, by arguing for a general presence obligation, and a robust and regular waiver colloquy. There's a quick recess.  When its done, Martins says the most recent notice given to Al-Nashiri differed somewhat from the last on-the-record, in court advisory regarding his right to be present.  That was back in April, notes the Chief Prosecutor. A pause, and then our ruling from the bench: the government's motion, the main one regarding presence (AE99) is denied.  The accused has a right to be present, which can be knowingly and voluntarily waived.  And, Judge Pohl continues, because the commission has resolved the presence issue on legal grounds, the parallel defense motions---to compel discovery and to postpone consideration, among other ripe requests---are also denied.  As for procedure, the court periodically will conduct an in-person refresher regarding ongoing waiver.  Because that has not taken place since April, the court asks Al-Nashiri to be brought before the court for an on-the-record discussion tomorrow. Kammen pushes for some additional time to conduct a medical examination.  That would delay things only slightly, and could return Al-Nashiri to court perhaps in January or in December.  Mattivi disagrees, and notes the defense's other request regarding the protocols that will govern its experts' examination of the accused.  In the defense's view, Mattivi argues, the court must resolve that before any examination can go forward.  In this way, Kammen essentially asks to continue the case for a month or more.  The prosecutor adds that Al-Nashiri repeatedly has assented, voluntarily, to the use of belly chains.  The claim of "retraumatization" is thus absolutely false. Does any of this change Judge Pohl's plans?  Nope.  We will not proceed further until the court has advised Al-Nashiri, in court and on the record, of his right to be present and the potential consequences of a waiver.   That will happen first thing tomorrow, per the court's order.  The judge thus calls an end to the day's proceedings and departs the bench.  Until tomorrow at 0900 . . .