Case Coverage: 9/11 Case

12/9 Session: Morning Session: Can't We Deconflict?

By Benjamin Wittes
Friday, December 11, 2015, 4:24 PM

Well, that was a bust!

Wednesday morning’s 9/11 military commission session never gets past the opening formalities of verifying that the defendants are all present or, if not, voluntarily waiving their right to be present.

The reason? Two of our defendants—KSM and Mustafa al Hawsawi—aren’t here. It turns out there’s been a scheduling snafu. Both men have ICRC appointments today and neither wants to miss them to sit in a boring court hearing.

KSM is being atypically accommodating. He has voluntarily waived attendance at both the morning and afternoon commission sessions. But Al Hawsawi throws a wrench into the works. He’s insisting that this absence is not voluntarily, because he’s having to choose between the ICRC visit and hearing.

Military Judge James Pohl is understandably annoyed. Can’t JTF-GTMO deconflict the detainees’ appointments? The man’s got a point: It’s not like these guys have busy schedules or anything.

At any rate, we have a problem: under Judge Pohl’s prior order, the detainee has to be present if he does not voluntarily waive his right to be present. And Al Hawsawi has neither voluntarily waived nor been brought to court. So after a lot of hand-wringing about what to do, Judge Pohl decides to have him reapproached and asked again whether he voluntarily waives—and to have it made clear to him that he can attend the afternoon session even if he goes to hang with the ICRC this morning.

So we recess. When we come back, things look better. Al Hawsawi has clearly voluntarily waived for the afternoon. He has said he wants to go to his ICRC visit in the morning and he doesn’t feel like coming in the afternoon either.

But wait a minute? Did he say clearly that he voluntarily waives for the morning as well? Or just that given the choice, he prefers the Swiss? Nobody seems entirely sure, and the morning is almost over anyway, so Judge Pohl decides to throw in the towel and call the morning session off.

We’ll be back in the afternoon.