Case Coverage: 9/11 Case

1/29 Hearing #2: On CCTV Stoppages and Forthcoming Orders

By Wells Bennett
Tuesday, January 29, 2013, 10:30 AM

We come to an expected vignette about yesterday’s brief audio and video blackout.

Judge Pohl explains: the idea behind the forty-second delay is to prevent the disclosure of classified information.  But only the judge has the authority to close the courtroom, he says.  It is not the Court Security Officer’s (“CSO”) decision, or any other person’s.  The court is emphatic about another thing, too: KSM lawyer David Nevin’s remark, which prompted yesterday's break in the audio and video feed, was not a basis for censorship.  Nevin merely had reiterated the caption of an unclassified appellate exhibit: AE80, on the preservation of black site evidence.  Again, the court underscores, closure is up to me and me alone.

Continuing, he makes a related point about the courtroom's technical capabilities.  There’s one audio feed at the counsel desk, Judge Pohl says, and another at the bench.  These can be turned off, so as to prevent leakage and overhearing.  But there’s also a feed to the stenographer, used for transcription purposes; its on-off functioning is unclear.  Having identified this equipment, the court directs the government to identify the security official responsible for it, so that the defense can discuss courtroom protocols with him or her.  David Nevin stands and objects to the use of microphones that can’t be turned off, and that might impinge upon the confidentiality of private, attorney-client sidebars.  Ditto Bormann, who emphasizes the need to protect the secrecy of her chats with bin Attash: she cannot provide adequate representation, under the Model Rules of Professional Conduct, if those discussions are piped directly to (or can be so easily overheard by) the prosecution.

As if on cue, the Chief Prosecutor rises in support of transparency.  Given Nevin’s remarks, he says, the excised portion of yesterday’s transcript should be provided to commission stenographers, who prepare the day’s unauthenticated transcript.   (The feed---which was interrupted yesterday, of course---provides the material to the stenographers directly.)  There’s some back-and-forth about precisely who controls the preparation of the unauthenticated document: is it the prosecutor or the court itself?  Cheryl Bormann thinks the latter, and thus returns to her theme of preventing unwanted snooping into her discussions with bin Attash---who, she adds, the government wishes to kill.  James Harrington, lawyer for Ramzi bin al Shibh, echoes Bormann’s concerns---but inches close enough to still-secret themes, so Judge Pohl stops him.   And James Connell notes that he might well plan to call the security officer as a witness at some stage.

Finally, the court forecasts a forthcoming written ruling on AE36, regarding requests for the production of witnesses.  The gist: assuming without deciding the Constitution’s application, the Court believes the relevant legal rule, RMC 703, is not unconstitutional.  It is also not inconsistent with the MCA 2009, either.  As for the witness requests themselves, Judge Pohl says the defense must give prior notice to the prosecution of the relevance of a sought witness’ testimony; such notice must include contact information.  Of course, the defense remains free to seek court assistance---on an adversarial basis, unless extraordinary circumstances warrant an ex parte submission---if the prosecution denies a witness request.

There's a bit more housekeeping: we're not likely to hear oral argument on two ex parte requests filed on behalf of Mustafa al-Hawsawi, AE109 and AE110.  And AE84 and AE85, both regarding forced-feeding policies at GTMO, won't be up for argument either. The defense withdrew the former, and agrees that the latter is moot.

Without prompting, the court concludes with a final secrecy question: the government believes the accused can be excluded from an evidentiary hearing involving classified information, right?  Yes, says Baltes, under certain circumstances pre-trial.   Judge Pohl notes the defense opposition to exclusion as a categorical matter.  How to proceed? The parties will brief the issue, the court says---and until it is resolved, there apparently won't be any closed sessions that exclude the accused.  The prosecution is keen to have the briefing done pronto, for planning purposes over the next hearing sessions----but the court balks at an expedited briefing schedule.

On to the day's work.  Up next: 13U, another of the docket's four protective order-flavored motions.  We're in a quick coffee recess.