Military Commissions

1/29 Hearing #1: A New Lawyer, and Voluntariness

By Wells Bennett
Tuesday, January 29, 2013, 10:13 AM

Do you know what time it is?  9:09 a.m., better known as resplendent-in-judicial-robes time.  Judge Pohl calls our session to order.  And it’s seemingly a court-and-counsel only affair; all five accused are absent.   Confirmation of the latter comes in the form of chosen court attire: Cheryl Bormann has not donned her Abaya.  She instead appears in Western business clothes, her head uncovered.   Our first order of business: housekeeping.

Apropos of Cheryl Bormann, or her client, there’s a new lawyer for Walid bin Attash in the courtroom, LCDR James Hatcher.  The attorney has been detailed to the case since 2008, reportedly, even though he hasn’t argued in court or attended commission sessions.  Hatcher explains that he was released from the Navy in 2011—he’s a reservist---but reactivated earlier in 2012.  He’ll obtain new detailing documents to clear this up.

Also on our minds is the outcome of yesterday’s classified 505(h) session, regarding AE80---a motion to preserve evidence of existing black sites. Judge Pohl notes only that the 505(h) was held, and that, subsequent to the 505(h), the parties also met pursuant to Rule 802, regarding scheduling.  (AE80, we learn later, will await argument until February.)

Another key piece of morning business, as always, is voluntariness.  Prosecutor Robert Swann calls a witness, Maj. Michael Griffin.  This breaks with the government’s past evidentiary practice: the JTF-GTMO official who testified to voluntariness in prior sessions had done so on an anonymous basis.  But there’s no need to take the same tack with this witness, as Chief Prosecutor Mark Martins explains.  He also retroactively lifts the veil of anonymity from Griffin's predecessor, whom he now identifies as Jennifer Straza.  Of course, Martins reserves the right to call unnamed witnesses as needed, in order to ensure security.

Swann and Griffin then march briskly through the commissions’ by-now familiar voluntariness chat.  Were all five accused advised of their rights to be present?  Did they voluntarily and knowingly sign written waivers of those rights?  Did they say they understood their rights, and the waivers they signed?  Griffin says “Yes” each time.