Case Coverage: 9/11 Case

10/23 Motions Session #1: Sounds and Vibrations

By Wells Bennett
Wednesday, October 23, 2013, 10:44 AM

Trumpets sound, the flaming gong bangs, and a wave of applause overpowers Smallwood Hall, the CCTV facility at Fort Meade. It is here that we take in the sorta-live broadcast of pretrial proceedings in United States v. Mohammed et. al.  And it is here that the screen displays Army Col. James L. Pohl, the robed military judge.  He calls the proceedings to order.

The accused are all in the courtroom, save for Ammar al-Baluchi.  That, of course, means a voluntariness colloquy between prosecutor Robert Swann and CDR George Massucco, Guantanamo’s Staff Judge Advocate.  The latter tells the prosecutor that he advised al-Baluchi of his rights to attend, and that al-Baluchi voluntarily waived those rights.

LCDR Kevin Bogucki raises an issue regarding his client, Ramzi Bin al Shibh.  Some time earlier, Judge Pohl had ordered JTF-GTMO to cease certain actions alleged by Bin al Shibh in a motion, AE152---among other things, exposing Bin Al Shibh to “sounds” or “vibrations” that disturb him and preclude him from participating meaningfully in his case.  But this has continued happening, despite the order.  According to the lawyer, a defiant JTF-GTMO has rebuffed the court’s command, finding it somehow to be “ambiguous.”  CDR Massucco even went so far as to disclaim knowledge of the the ruling, at least initially.  Eventually Massucco obtained a copy, and advised the guard force, Bogucki says.  Alas, that did nothing to stop JTF staff from carrying on with its disturbances and precluding Bin Al Shibh from sleeping.  Thus he has cancelled attorney meetings, and come to court today exhausted.  The lawyer hasn’t filed a written motion, but finds the matter urgent enough to warrant discussion now.

The court reminds Bogucki of the government’s longstanding position, that JTF doesn’t, in fact, mistreat Bin Al Shibh in this fashion---and his own resolution of the problem, which was to admonish camp staff while not actually finding that it had engaged in any of the alleged misconduct. So what should the court do now?   Bogucki answers by noting the delay and futility involved in the filing of a motion.  Thus he asks for the opportunity to put on evidence, now, despite noncompliance with certain formalities.  It’s an emergency motion, he says.

Brig. Gen. Mark Martins, the Chief Prosecutor, is unsure of what Bogucki seeks.  Thus he asks that the defense’s request be denied---assuming, evidently, that Bogucki wishes the proceedings to be abated, or for Judge Pohl to enter another order insisting upon compliance with, er, orders.

The military judge asks, and Bogucki confirms, that only Bin Al Shibh can testify to any ongoing deployment of sounds and vibrations.  But the one-witness problem isn’t Bogucki’s fault; he adds that the defense has no ability to question the guard force, who might also tell the court a thing or two about what does and does not go down over at Camp Seven.  The Chief Prosecutor opposes such questioning as premature, while noting that another court ruling, AE108, would facilitate counsel visits to the detainees’ cells---and allow for factual development---in any case. Shouldn’t Bogucki take advantage of that, in investigating conditions of Bin Al Shibh’s confinement?  The lawyer doesn’t quite say so, but it seems he has not yet visited Bin Al Shibh’s digs.  Given this, the court expresses sympathy for Martins’ claims and chides Bogucki for revisiting his rulings over and over again.  Judge Pohl seems to think his hands are tied: his ruling on AE152 has, after all, been conveyed to the guards. What does Bogucki want him to do?  The matter essentially is dropped, when Bogucki tells the court to expect a future written motion.

A bit more housekeeping from defense counsel, among other things about Convening Authority delays in resolving defense ex parte requests, and we move to the substance.  And by that I mean the Convention Against Torture.