Case Coverage: Military Commissions

1/29 Hearing #4: In Which a GTMO Sleepover is Debated

By Wells Bennett
Tuesday, January 29, 2013, 12:25 PM

We move now to AE108, a defense effort to inquire into the current conditions of the accuseds’ confinement.  Day-to-day life at the detention center is a subject for LCDR Walter Ruiz, Mustafa al-Hawsawi’s lawyer.  He rises to speak first.

There is broad agreement about the defense’s entitlement to look into confinement conditions.  The parties' disagreement goes, apparently, to the extent of that entitlement.  How much time will be allotted for access to the detention facility? The prosecution proposes two hours; Ruiz wants at least forty-eight continuous hours, with a two-day counsel visit occurring at least once every six months.  Elaborating, the lawyer says he wants to stay overnight at the facility, too, in order to get a genuine feel for the place.  (Humor: Judge Pohl mishears, believing that Ruiz said he wants to sleep with his client, rather than at the facility where al-Hawsawi is held.)  But what exactly does the lawyer want?  A cot?  Ruiz says he would be comfortable staying in his own cell for the evening, or out in a hallway.

Why stay overnight in the detention center, anyway?  The question comes from Judge Pohl.  For Ruiz, it is all about details.  Take these examples, which seemingly go to mitigation: daily stressors on an accused, the his living habits, detention policies as implemented; and so on. Two hours simply is not enough to uncover even that much.  Ruiz will need much more time, and a mitigation expert to point out especially significant evidence.  He then marches through some more objections, regarding, among other things: prior notice to prosecutors (as opposed to JTF-GTMO staff, seemingly) about visits to the facility; the extent to which defense counsel can speak to his client during visits; and the prosecution’s ability to review any sketches and other materials prepared during overnight stays.  We can glean the main point easily enough.  Ruiz is eager to avoid any intrusions into his attorney-client relationship.  (The lawyer adds that he wants very much to discover ICRC-produced materials regarding al-Hawsawi's detention---but the prosecution has rejected that.)

LCDR Kevin Bogucki, on behalf of bin al Shibh, employs some vivid imagery to deride the government’s so-called “compromise” proposal for facility access.  The defense lawyer pans it as a “guided tour” through some sort of hypothetical Disney Land.  If an expert accompanied you during that tour, well, the expert would tell you that Disney Land’s elephants are mechanical, its foliage exquisitely fake.  We can’t uncover meaningful evidence about confinement conditions in this way, counsel argues, while embarking on some exceedingly brief, prosecution-led, expert-less stroll. There may be client-relevant stuff we’ll need to see, but that won’t be readily apparent---without much more time, and the assistance of expert personnel.

We depart Bogucki's imaginary theme park, and come to an interjection by Ammar al-Baluchi’s lawyer, J. Connell III: he points out MCA 949(s).  That provision prohibits cruel and unusual punishments, and sweeps more broadly (he says) than the Eighth Amendment.  And military law generally prevents pretrial punishments, too.  AE108 is thus an urgent matter, needing resolution now.

Then there’s David Nevin for KSM.  KSM was tortured, his lawyer says.  And the torture is connected to his in-court comportment, which itself is connected to KSM’s current conditions of confinement.  A close look at those conditions is especially appropriate here---and warrants a lengthy, unaccompanied visit to the detention center (maybe more than forty-eight hours, though that timeframe may work as a starting point).  Nevin likewise doesn’t want any government minder looking over his shoulder, during his facility examination.

Cheryl Bormann finds Nevin’s argument persuasive, and notes that she cannot visit the high-security place where her client, bin-Attash, is held---not, at least, as freely as she could visit a federal penitentiary in an ordinary death penalty case.  These unique circumstances, she argues, call for extensive access.  Forty-eight hours is the bare minimum.  Finally we come to James Harrington, another of bin al Shibh’s attorneys.  Harrington argues ever briefly, noting only that his past experience---in thirty odd years of death penalty work, he’s had many extensive tours of prisons like Attica---has shown that counsel must get a feel for the conditions of the client’s confinement.

What does the prosecution say in response?  We’ll find out after lunch.