Terrorism Trials: Military Commissions

Defense Objects to August Hearing in the 9/11 Case

By Wells Bennett
Wednesday, July 11, 2012, 6:20 PM

Another development in commissions-land, apart from al-Qosi’s completion of his sentence and landing back in Sudan: the Miami Herald’s Carol Rosenberg also informs us (and the docket shows) that the 9/11 defendants wish to postpone their upcoming, August-12 hearing session at Guantanamo.  Though both are indicated on the docket, neither the defendants’ delay request nor the government’s opposition have completed the obligatory security scrub; the papers thus are not yet available to the public. 

The apparent basis for the sought postponement? The scheduled August dates fall smack dab in the middle of Ramadan.

My guess is that defense just missed this overlap initially.  During arraignment, Judge James Pohl had set the case’s next hearing for June.  But lawyers for four of the accused then asked to move the June session to“8 August 2012 or later,” citing scheduling conflicts for attorneys William Hennessey and David Nevin.  (The fifth defendant, Mustafa al-Hawsawi, did not join in this request.)  Judge Pohl granted the delay and rescheduled the hearing for August 8-12.  In doing so, his written order noted that “[n]o defense counsel has raised any concerns that 8 August 2012 is during Ramadan (21 July – 20 August 2012).”  The court further said that it would “not consider any adjustment in its order based on a conflict with Ramadan.” 

Nevertheless, the defense is back with a request to postpone the August 8-12 session once more.  But because of the ongoing security review, we don’t know exactly how much of a continuance the defense seeks, or precisely what its arguments are.  

The defense filing’s title offers a hint, though: “Joint Defense Notice of Objection to AE 035C (Order on Motion for Continuance) and Joint Defense Motion for the Military Commission to Respect the Religious Observances of Enemy Prisoners under Common Article 3.” The latter phrase suggests that, in the defense’s view, the commission’s refusal to grant a second continuance on religious grounds could amount to an “adverse distinction founded on . . . religion” – the kind prohibited by Common Article 3 to the Geneva Conventions.  

That, and the defense objection, strike me as the sorts of arguments that – in an everyday criminal case, and all things being equal - a federal court likely would deny, among other things because defense counsel did not raise the issue earlier, and because defense counsel originally had proposed a Ramadan-overlapping date for the session.  

Of course, the scheduling issue would be moot if the August proceedings could go forward with no defendants present in the courtroom.  The government earlier asked Judge Pohl to require them to attend every court session, unless the defendants could show good cause to support an absence - the theory being that capital cases by their nature require perfect attendance.  Defense attorneys counter that the right to attend even capital proceedings is personal to the accused – it therefore can be waived by conduct or explicitly, and without having to satisfy any good cause requirement.  (Here's one of the defense responses, filed by counsel for al-Baluchi.)

The prosecution and defense theories thus both contemplate court hearings without the accused - the former when the accused shows good cause, the latter under almost any circumstances, provided the defendant knows what he's doing.  Both positions suggest a means by which the commission could go forward in August, but without addressing the belated “Common Article 3 objection.” Judge Pohl could enter an order, now, permitting the accused to forgo participation in the upcoming session only. 

Will that happen?  I reckon not.  My sense is that Judge Pohl will not want to permit any voluntary absences, unless he first has explained their consequences to the defendants – in person.  (Judge Pohl specifically declined to instruct the accused about their presence rights during arraignment, instead asking the government and defense to submit briefs on the question of whether a defendant must always attend every court session in a death penalty case.) 

All of which is to say: odds are the commission will not grant a second continuance, the latest defense filing notwithstanding.   The August 8-12 hearing likely will proceed as planned.