Case Coverage: 9/11 Case

1/28 Hearing #6: Who Hit the Censor Button? And Voluntariness, and a 505(h) Session

By Wells Bennett, Sophia Brill
Monday, January 28, 2013, 3:06 PM
The parties return, the defense having debated and then chosen a procedure for litigating AE80, regarding the preservation of evidence of any existing detention facility.  Before we really learn from KSM lawyer David Nevin what the lawyers’ favored option is---it sounds as if we’ll move to a Rule 505(h) session, rather than attempting argument in open court immediately---the audio cuts out, and is replaced by white noise.  Then the video cuts out.  It’s blank screen time.  Smoke if you got ‘em.
CCTV resumes after a few minutes.  The delay (and then blackout) was not occasioned by the court, Judge Pohl says with a mix of confusion and irritation.  Thus he asks Trial Counsel about the reason for the interruption; after all, David Nevin wasn’t talking about classified information when the censoring mechanism was triggered.  He was talking instead about concededly unclassified stuff, in fact.  The jurist seems peeved: If some external body is controlling the audio and video, based on what that body deems classified “with no explanation”---then Judge Pohl says a "meeting" will be in order.  What’s afoot?  Prosecutor Johanna Baltes says that she can explain what transpired moments ago---but only during the closed 505(h) session.  Mr. Nevin replies that, like Judge Pohl, he too would like to know “who has permission to turn [the censorship] light on and off.”

The development is weird indeed, and all defense counsel pounce on it: wasn’t the Court Security Officer ("CSO")---and not some other person or entity---in charge of audio and video security?  Who else is monitoring these proceedings? And why did Nevin’s utterance (he only mentioned the name of the motion to preserve detention center evidence!) stop the audio and video feeds?  The questions linger a while without resolution, as nobody can yet determine exactly what brought on the brief security pause.  

But eventually we return, as discussed earlier this morning, to voluntariness. Judge Pohl wants to ask each accused individually if he understands his rights. Nevin again requests that presence waivers be effective going forward throughout the proceedings---in other words, he desires not to have to repeat the whole advice of rights process for future sessions. Judge Pohl says the court can do waivers today that will be valid through the February session, but not the April session or any sessions after that. Those sessions are too distant, and the court says it will have to revisit the waiver issue periodically.

Ms. Bormann notes that the accused are already required to execute a written waiver if they decide not to appear in court. She believes that’s sufficient for her client---and, at any rate, that her client, Walid Bin Attash, intends to come to court on most days. But, she says, he shouldn’t have to come into court each day, only to reaffirm his knowing and voluntary decision not to attend in the first place.  The Chief Prosecutor rises for the government and says the accused should waive their right to be present in-person, on the record, and at the first day of each week’s session.  He adds that for subsequent days in a given week, written waivers may suffice.  Finally, Martins emphasizes that the court and counsel should revisit voluntariness and presence matters frequently, in light of the D.C. Circuit’s case law on those issues.

Advice of rights time, y'all.  Judge Pohl addresses each accused by name. He’s going to explain their right to be present and then ask each man to acknowledge that they’ve understood the court’s advisory. Then Judge Pohl goes into some boilerplate: Each accused has the right to be present; a request to be absent is a waiver of that right; after giving a waiver, the accused can change his mind for later sessions; the accused will be informed of all dates and times of sessions; and so forth.

Does each accused get that?  First up is KSM: Yes, he does, and has no questions about his rights, either.  Next is Bin Attash: Yes, he understands the right to be present. But when asked if he has any questions, the accused delivers a modest speech (sadly, the only one of the day).  Bin Attash says he has no real motivation to attend the proceedings---and that he’s built no relationship with his attorneys and doesn’t trust them. He’s been unable to prepare a real defense, and there’s nothing that would motivate him to show up.  Nevertheless, bin Attash understands his rights, and doesn’t want this to be a “personal” issue.

Next is Ramzi Binalshibh: Yes, no questions. Then Ali Abdul Aziz Ali: Yes, no questions. And lastly, al-Hawsawi: Yes, no questions. So, at least for the rest of this week, it looks like we’ve taken care of voluntariness issues.

Next up is a closed 505(h) session, on precisely what defense lawyers will (and won’t) argue, in relation to AE80.  But wait: the court says it will recess immediately after the 505(h).  We’re thus done for the day; see y’all at 0900.