Case Coverage: 9/11 Case

12/17 Motions Session #1: Sounds and Vibrations Redux

By Wells Bennett
Tuesday, December 17, 2013, 9:37 AM

It’s go time down at Guantanamo.

Per the court’s usual practice, all five accused are present for this first day of open proceedings, along with their lawyers---and, it appears, some new ones.  Capt. Todd Swenson has been detailed to serve as lawyer for Walid Bin Attash.  Lt. Col. Sean Gleason likewise has joined Mustafa Al-Hawsawi’s crew, his other attorney, CDR Walter Ruiz, having taken up a civilian role.

All that briskly handled, the military judge, Army Col. James Pohl, advises each accused of his right to be present and a corollary ability to waive that right and skip out.  Four of the five guys, when asked, say they understand the potential consequences of waiver.  But Bin al Shibh doesn’t get it, he says---or, at least, he doesn’t want to get into the issue.  Instead, and along the lines of his past in-court remarks, the detainee protests his treatment by the guard force; he won’t discuss his presence rights, he says, unless some authority steps in and addresses the forces’s misconduct.

Bin Al-Shibh’s attorney, LCDR Kevin Bogucki, explains that in his cell, Bin Al Shibh continues to be exposed to sounds and vibrations.  These directly violate past instructions from the military commission, and also keep Bin Al Shibh awake all night and exhaust him---thus precluding the accused from participating meaningfully in court proceedings.  Such mistreatment is sanctionable, in Bogucki’s view.  And yet commission rules preclude the defense from seeking court sanctions where, as here, the government violates a prior court order not to subject Bin Al-Shibh to sounds and vibrations.  Bogucki thus says he’s powerless.

The military judge scoffs at Bogucki’s legal analysis, insisting that, in fact, Bogucki has a remedy for the alleged wrong.  And its the “alleged” part that matters so much today, just as it has before. As in past sessions, says the court, Bogucki hasn’t put on any evidence that, in fact, his client has been subjected to psychologically disturbing things in his cell. The attorney counters that he doesn’t have access to Camp Seven, where Bin Al Shibh is held, and thus also has no means of proving what he has proffered today, and previously.  An exasperated Judge Pohl insists that, if the detainee understands his rights and wants to leave, he can.  But he won’t adjudicate the impact of any mistreatment on Bin Al Shibh’s rights without first receiving evidence. (The government continues to deny the sounds and vibrations claim.)

The court grants a fifteen minute recess, during which Bogucki will speak to Bin Al Shibh about his intentions, and his treatment by camp guards.