The hearing gets under way at 9:23, when Military Judge Col. James Pohl, looking resplendent in his jet-black robes, takes his seat–authority emanating from his very fingers–and calls the military commission to order.
Take 3 of the trial of KSM is now under way–and Judge Pohl’s authority comes quickly under assault.
Trial counsel Brig. Gen. Mark Martins starts to announce the case, but Judge Pohl cuts him off almost immediately. There is a long pause, during which it is not initially clear what’s going on. The issue emerges as one related to translation headphones for one of the detainees.
Judge Pohl notes for the record that Walid Bin ‘Attash is in “a restrained chair.”
There is a commotion of some sort, as one of the attorneys (we can’t tell which one, because of the camera angle) attempts to address Judge Pohl. Judge Pohl responds that he will address motions in proper order and at the proper time. This does not settle the matter, and he repeats that he will address motions at the appropriate time. He tells someone that they should put the headphones on the Bin ‘Attash and see if they work.
Just so everyone is clear, he then says, this proceeding is a legal process like any other. The time for motions, he says, is at arraignment. He says he will take all the motions in order that the defense wants him to. But he is not taking motions out of order and not until the appropriate time. The accused must first assert his right to counsel. The court also have to hear qualifications of the prosecution and defense. There’s a process in place, he says, and the proceeding will be conducted according to the rules. Motions will be addressed at the time of arraignment.
Commander Walter Ruiz, on behalf of Mustafa Ahmed Adam al Hawsawi, says he does have an argument and a Supreme Court case to support it.
Pohl responds firmly: No, he says. Listen to me. When you make motion, if you want to go back and say that I should have considered it earlier, you’re free to do that. But I’m not taking it out of order. Ruiz says he’s not asking him to take it out of order, but he wants to cite his case. You can cite the case later, Judge Pohl responds. Ruiz pushes again. And Judge Pohl pushes pack. You can make motions at the appropriate time. Now is not the appropriate time. Are we clear? Ruiz says he understands but that he objects.
Judge Pohl notes the objection, and allows Martins to proceed.
Martins announces the commission and the referred charges. He declares in the case of each of the detainees that he has been served with the charges against him in a language he understands. Ruiz cuts him off and says he wants to be heard. Al Hawsawi, he says, did not receive the charges. He wants that stated for the record. Okay, says Judge Pohl. Again, if you have motions, we will get to that at the appropriate time. He tells Martins to go ahead.
Martins then introduces each of the prosecution and defense counsel. Judge Pohl notes that he has detailed himself to the case. He says that each of the accused will now be advised of his right to counsel and representation. He turns to David Nevin, who is representing Khalid Sheikh Mohammed. Are you learned counsel, he asks? Nevin confirms that he is.
James Connell, who represents Ali Abdul Aziz Ali, stands up. I noticed, he says, that the court skipped over the part of the script that deals with the clothing issue, he says. My client was not allowed to bring his vest and head gear into court.
That part of script, Judge Pohl says, deals with prison garb, and my understanding was that none of the detainees are in prison garb–though they may not be in the exact non-prison garb that you want them in. Connell confirms that this is correct. (The detainees are all wearing robes.)
Judge Pohl says that that’s a real issue he’ll address later on. Nevin informs him that the same issue applies to KSM. Another lawyer chimes in that his client has the same problem too. His client is not wearing what he would have chosen. His clothes were given to the JTF-GTMO in time for them to be scanned. It’s a jacket. But they were not approved.
The rule, Judge Pohl says, is that the accused are entitled to wear appropriate non-prison attire in court. If the JTF commander makes an arbitrary decision on what clothing he can wear, let me know and I’ll revisit the issue.
One lawyer asks whether a decision that his client can wear a suit but not other clothes would count as arbitrary. Judge Pohl says he doesn’t give advisory opinions but that if there’s not a good reason why certain clothes are denied, that might be arbitrary.
Nevin says that he has spoken to Col. Thomas (presumably of JTF-GTMO), who told him that the clothing he had brought for KSM was not allowed. When Nevin asked why, he says, he was just told it’s “not happening.” Nevin says he asked him whether there was a standard operating procedure, some rule or standard. Col. Thomas would not answer, but just reiterated that the clothing he provided was not allowed. The clothing in question was a vest and a turban, Nevin says.
Judge Pohl says he gets it. We’ll get to the issue, he says, but let’s do the counsel first.
Ruiz says his client has the same issue. One of the other lawyers complain that he can’t bring in legal mail to discuss with his client prior to court. He’s having a hard time following the proceedings and communicating with his client because of the lack of a script. They have back-and-forth over this, but Judge Pohl wants to move on to appointing counsel.
He tries to speak to KSM to appoint his counsel–and the show begins in earnest.