Terrorism Trials: Military Commissions

October 24 Session #1: Al-Nashiri On Presence

By Wells Bennett
Wednesday, October 24, 2012, 10:23 AM

The ongoing rain has not stopped a crowd from gathering at the ELC.  Among them is the accused, Abd Al Rahim Hussayn Muhammad Al-Nashiri---with whom the court wishes to speak about his right to be present during pre-trial hearings such as this.  Such was the outcome of yesterday’s hearing: no further proceedings until Judge Pohl establishes that, in fact, Al-Nashiri voluntarily and knowingly chooses to absent himself.

The court begins that conversation with the accused, who, speaking through a translator, affirms that he understands the presence right.  Does he also understand related issues---like his corollary ability to waive, and the potential consequences of a waiver?  Yes, though Al-Nashiri mentions that his appearance today was solely a consequence of the court’s order.  Seeking clarification, he asks: why did the court do that?  A written waiver, which Al-Nashiri could have signed in his cell, should have been enough.  When the court explains his rationale, Al-Nashiri emphasizes his reason for not wanting to attend---perhaps, he suggests, he might wish to avoid the court because he has been threatened.  Defense attorney Richard Kammen chimes in, and urges the court to hear what the accused has to say.

It is beside the point, in the court’s view, as the lone issue is informed waiver.   But Judge Pohl nevertheless recognizes Al-Nashiri, who stands and says:  I have been at Guantanamo for the last ten years.  This is my case, and I have a right to defend myself.  But if you order the guards to bring me here, and seat me in an uncomfortable chair, then I will not attend.  Ditto the vehicle that transports me from the detention center to the ELC---it too is uncomfortable, and should be replaced.  Then there are heightened detention center security measures: these are excessive and unjustified.

Al-Nashiri also mentions that he cannot say aloud anything which the government finds distasteful. Mistreatment by camp guards, he says, led Al-Nashiri to skip the last two commission sessions.  At the center of this is the accused's longstanding complaint about belly chains.  Camp guards continue to employ them, despite Al-Nashiri’s bad back.  Chaining me has nothing to do with security, he says.  The court interrupts: your counsel can challenge conditions of your confinement at a later time.  In response, Al-Nashiri says he plans to attend court sessions in the future, but that he will protest mistreatment or poor confinement conditions by absenting himself, as needed.

Guess what?  Both the government and the defense object, again, to the colloquy thus far.  Prosecutor Anthony Mattivi still perceives voluntariness issues; Richard Kammen renews his request to defer presence matters until doctors can examine Al-Nashiri.  The court bats both men away, and proceeds to the motions docket.