Military Commissions

1/31 Hearing #1: The Judge---And Only the Judge---Suspends Audio and Video

By Wells Bennett
Thursday, January 31, 2013, 9:42 AM

We return to the ELC courtroom, where prosecutors and defense counsel all are present.  The five accused are absent.

Prosecutor Robert Swann is first at the podium; his witness is MAJ Griffin---who testified earlier as to the voluntary, knowing absences of the accused.  Did all five receive the advice of rights this time around?  Did they sign written waivers?  Did they understand the potential consequences of skipping out?  Yes, yes, and yes.  J. Connell III, lawyer for Ammar al-Baluchi, asks about the tone of Griffin’s conversation with his client about voluntariness.  It was cordial, the witness says.

There’s some more housekeeping talk: the accused won’t have to be present for the first day of our upcoming February session, in order to refresh their waivers.  But Judge Pohl will require the accused to return to the courtroom for the first day of an April session.  The Chief Prosecutor rises and, unsurprisingly, asks the court to remain vigilant about policing the waiver of presence rights.  He urges Judge Pohl to review the Mitchell case in particular---which said that every presumption should be indulged against waiver.   As always, the un-barking dog here, legally, is possible appellate or post-conviction litigation on unknowing or involuntary absences from pretrial sessions. So much for voluntariness.

Now David Nevin has an emergency motion---to abate proceedings entirely, until the parties and the court can sort out, definitively, who is listening in; the eavesdroppers' powers to censor the courtroom's audio and video feed; and the extent of the intrusions into any attorney-client discussions.  As before, the lawyer emphasizes minimal rules of professional conduct, that apply universally.  Defense counsel can’t ethically represent the accused, he argues, if indeed their every word is monitored in Judge Pohl’s courtroom.   Judge Pohl will review Nevin’s motion after a recess (the lawyer having filed it by hand, rather than electronically, given the circumstances).  

But now, the court desires to speak once more to the suspension of the audio feed.  His tone is stern. The judge controls the courtroom, he emphasizes.  That’s why, at prosecutors’ request, Judge Pohl entered a protective order with a 40-second audio delay.  But nobody---nobody---is authorized to close the courtroom, other than the judge.  That was not the case on Monday, when an Original Classification Authority (“OCA”) cut the court’s audio and video broadcast, and on its own initiative.  A firm pronouncement from the bench: This will be the LAST time that the OCA, or any third party, will be able to suspend proceedings.  The OCA doesn’t work for the court, Judge Pohl says.  The Court Security Officer (“CSO”) does, though, and thus the CSO may suspend the CCTV broadcast, but only in the exercise of discretion delegated by the court. Thus the government is ordered to preclude any third party from suspending audio or video transmissions.  The ruling, moreover, is effective immediately.

We’re in a brief recess---during which the court will review Nevin's filing, and officials presumably will take their fingers off the censor button.  Wow.