Not the Onion: Progress in the 9/11 Proceedings

Given the antics of last week’s pre-trial hearings in the 9/11 proceedings in the military commission at Guantanamo Bay, Cuba, and the regular delays and consistent dysfunction of the commission system generally, my fellow observers and I were skeptical as to whether or not there would actually be any progress this week. It certainly did not start out on the right track.

Week two opened with four of the five co-defendants present in the courtroom; the exception was Walid bin Attash. A witness testified that bin Attash signed a voluntary waiver that morning, indicating that he did not wish to be present, which is his right. However, he also sent a letter to Judge Pohl at the same time, which began with the words, “My absence this morning is not voluntary…” Upon learning this, Judge Pohl ordered bin Attash to appear and explain the situation.

Bin Attash answered that he did want to be present in court, but that he opposed being forced to continue with his counsel, Cheryl Bormann and Michael Schwartz. Judge Pohl reiterated his position of last week: bin Attash can either proceed with his current counsel, or go pro se and represent himself.

After several back-and-forth interchanges between Judge Pohl and bin Attash, it was finally decided that bin Attash would remain at his table with his translator, towards the front of the courtroom, while his entire defense team would sit at the last table in the row. While it looks like bin Attash will continue with his defense team for now, he may later choose to represent himself.

From that point on, there was some semblance of progress. The court heard five motions during Monday’s full session, and more than 15 on Tuesday. Most were either defense motions to compel discovery from the prosecution or a discussion about the classification rules for discovery related to the commission (and sometimes a combination of the two).

The majority of motions were discussed in less than an hour. But after resolving the bin Attash issue, Monday morning’s session was devoted entirely to a single issue: the definition of “legal mail” and who gets to view it.

The prosecution asked Judge Pohl to modify his prior written communications order and prevent the defense teams from providing “legal mail” from their clients to any third parties. They argued that the definition of “legal mail” is constantly expanding, so rather than risk any threat to national security, it would just be easiest to ban sharing it entirely.

The defense teams countered by saying that since Judge Pohl issued his prior ruling, there have been no threats to national security and, to quote defendant Mustafa Ahmed Adam al Hawsawi’s lead lawyer Walter Ruiz, “If it ain’t broke, don’t fix it.” Jay Connell, lead counsel for Ammar al Baluchi, also argued that his client’s written documents had become an invaluable part of his work to raise awareness with the general public of Baluchi’s torture while in U.S. custody. Connell further maintained that amending the order to prevent him sharing this information also infringed upon the defense attorneys’ rights of free speech.

A handful of motions remain on the docket for Wednesday’s open session before the court moves on to consider classified issues. It appears that everything on the schedule may actually get accomplished before the court packs up and heads back home on Saturday– knock on wood.

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Published on July 27, 2016

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