Case Coverage: Military Commissions

1/28 Hearing #1: Changes to the Defense Team, and Things Voluntary

By Wells Bennett, Sophia Brill
Monday, January 28, 2013, 10:12 AM
The hour arrives, and our hearing begins.  There’s Judge Pohl, looking resplendent as always in his judicial robes.   All five accused are present in the courtroom, though not all of their lawyers are.
We turn first, as always, not to the substance but to procedure: specifically, recent alterations to the defense team.  Maj. William Hennessy is longer a member of Walid bin Attash’s defense, having withdrawn---reportedly at bin Attash’s request.  The circumstances prompt a complaint from the Abaya-clad Cheryl Bormann, who says she wanted to speak to bin Attash about the lineup change this morning, but was denied access by JTF-GTMO.  And it turns out that, according to Bormann, bin Attash also won’t speak openly about Hennessy’s representation, or to any other issue, while attending the day’s court proceedings.  It’s a problem for Judge Pohl, who asks about Hennessey’s seemingly unilateral withdrawal; how, exactly, was his client consulted?  Why didn’t Hennessey ask the court’s permission?  The court certainly did not excuse him.
Judge Pohl seeks input from the Chief Prosecutor, Brig. Gen. Mark Martins, who agrees that a colloquy with bin Attash is necessary to protect the accused’s rights.  Wrong, says the defense lawyer, who repeats: bin Attash has made clear that he won’t answer questions today.  Thus she urges the court to accept her earlier representation about Maj. Hennessey’s departure (the circumstances of which remain unclear).  Judge Pohl splits the baby: he’ll ask bin Attash about withdrawal, and accept counsel’s representation on that issue if, indeed, bin Attash refuses to answer.  When asked, bin Attash says nothing---thus counsel’s proffer serves to release Hennessey from bin Attash’s defense team.  The court nevertheless adds, after some further discussion, that Hennessey’s exit will not be formally complete until he has filed a written notice with the court.  Bormann says she’s insulted by this needless requirement: it should be enough, she says, that OCDC has approved of Hennessey’s removal.  In any event, the issue appears resolved, as a practical matter.

Defense changes also are on David Nevin’s mind: KSM’s Learned Counsel informs the court that KSM has a new attorney, Gary D. Sowards.  The trouble for the court is that, during arraignment, KSM indicated no preference for counsel (and indeed, said nothing at all)---thus election of counsel was by default.  Sowards wasn’t there, though---can he be considered “default” counsel, under these circumstances?  Nevin responds that KSM has requested Sowards’ assistance, and asks the court to accept his representation to that effect---because, as before, the case’s most notorious defendant plans not to acknowledge the court.  That’s not enough for Judge Pohl, as far as the default issue goes: he needs to hear from KSM about who KSM does and does not desire, lawyer-wise.   This prompts some philosophically-flavored observations from Nevin, about what truly protects the rights of an accused: taking counsel’s word for it, about the accused’s wishes to retain a new lawyer, or insisting upon on-the-record remarks from the accused himself.   He adds that Sowards’ appointment satisfies the criteria of RMC 502---which doesn’t call for an in-court confirmation from the accused.   Martins disagrees: a simple “yes I want Mr. Sowards” doesn’t demand too much of Mr. Mohammed.  The lawyer has got subsequent appeals on his mind, obviously.

The court to KSM: do you want Mr. Sowards’ help?  The accused, beard and all, speaks not to Judge Pohl but quietly to his lawyer, Nevin.  Nevin then relays that KSM indeed has told him that KSM desires Sowards’ assistance.  The new lawyer therefore puts his credentials on the record, and confirms that he has spoken to KSM, too---and that his understanding is that Mohammed desires his assistance.  There’s some more excruciating wordplay about what KSM said, as opposed to what counsel understood, but still nobody will say that, yes, KSM spoke to Sowards and authorized Sowards to advocate on his behalf.  The new attorney nevertheless emphasizes that he would never, ever, claim to represent someone who truly didn’t want his representation.  Ultimately, the court accepts Sowards’ representation about his representation, and blesses his entry into the case.  

While we’re talking about personnel shifts: LCDR Walter Ruiz seeks additional legal help for his client.  (For the time being, al-Hawsawi’s lone lawyer is Ruiz; the other accused have Learned Counsel---ones expert in death penalty matters---as well as other counsel.  OCDC apparently is contemplating the assignment of additional lawyers to help al-Hawsawi---in particular, CDR Suzanne Lachelier, who formally has separated from OCDC, but may soon return.)  Judge Pohl wants to know---does al-Hawsawi still want another lawyer to represent al-Hawsawi?   The answer is yes, but only qualified counsel, according to Ruiz.  In that case, the court is confused: why should he get involved, if OCDC’s detailing decision remains pending?  In any case, Ruiz is ready to proceed today, but nevertheless flags the representation issue for the court---Bormann and Nevin having done just that, earlier on.

The last procedural item is voluntariness. As always, the accused must be advised about their presence rights, and precisely what they must understand, do and say in order to absent themselves.  The court warns: if the accused elects not to respond to my advisory regarding presence, then the accused will have no choice but to attend all of this week’s meetings.  The court doesn't go so far as to do that---the accused being in the room, and all.  We'll apparently hear more about voluntariness this afternoon.

In the meantime, we turn to the day's business: motions.