Courtroom Insanity at Guantanamo Bay

After years of delay, the government is prosecuting the ringleaders of the September 11 attacks in a military tribunal. The defendants were arraigned yesterday in Guantanamo Bay, where the proceedings will take place. The Associated Press describes the status of the prosecution:

The U.S. has finally started the prosecution of five Guantanamo Bay prisoners charged in the Sept. 11 attacks that killed nearly 3,000 people, but the trial won’t be starting anytime soon, and both sides said Sunday that the case could continue for years.

Defense lawyer James Connell said a tentative trial date of May 2013 is a “placeholder” until a true date can be set for the trial of Khalid Sheikh Mohammed, the self-described mastermind of the attacks, and his co-defendants.

“It’s going to take time,” said the chief prosecutor, Army Brig. Gen. Mark Martins, who said he expects to battle a barrage of defense motions before the case goes to trial. “I am getting ready for hundreds of motions because we want them to shoot everything they can shoot at us,” he said in the wake of Saturday’s arraignment, which dragged on for 13 hours due to stalling tactics by the defendants.

Yesterday’s arraignment was a farce. Business Insider live-blogged the proceedings; Lawfare also provides a detailed summary. Yesterday was devoted in part to the defense lawyers’ efforts to disqualify U.S. Army Col. James L. Pohl, the presiding judge, by showing that his qualifications are insufficient:

Bormann resumes. Do you agree that impartiality is an important quality? Judge Pohl points out that the rules say as much. What about judicial temperament? Or a knowledge of the applicable law, and practical expertise? Shouldn’t a qualified judge have all of these things? Or here’s another example: has Judge Pohl ever practiced law in a civilian court?

He hasn’t. Has he presided over a case in an Article III court? Nope. Judge Pohl hasn’t done that, either. Her clip increasing, Bormann asks if Judge Pohl has ever requested what Borman calls a “supervisory opinion,” from an Article III court. Judge Pohl is not sure about the question’s relevance, or even how he should answer. But, he says, while working as an appellate lawyer, he sometimes would collaborate with the Solicitor General’s office, on cases involving the Supreme Court. These would typically be oppositions to petitions for certiorari.

Bin ‘Attash’s attorney next asks how long Judge Pohl practiced, before taking the military bench. It was twenty years—though, when questioned by Bormann, Judge Pohl says he probably did not ever handle a case implicating more than 10,000 pages of discovery. Bormann asks a folllow-up, to which Judge Pohl says that he’s just as unsure about whether he ever worked on a case involving 20,000 pages. Ten thousand or 20,000, what difference that would make now, asks the court? Complex litigation is an expertise that certain counsel and courts have, Bormann explains. Still finding no relevance in the questioning, Judge Pohl deems it inappropriate and asks Bormann to move on.

Digging in, the lawyer reloads her discovery question. As a judge, and prior to this case and to al-Nashiri’s, have you, Judge Pohl, ever handled cases involving more than 20,000 pages of discovery? It is still an inappropriate question, he says, one altogether unconnected to challenge issues. Ask your next question.

As a lawyer, did you ever participate in a case with more than one defendant? Her strategy has become transparent to the court. You want to know whether I have experience enough to handle this case? Is that your approach? I’m telling you again: there’s no way that’s grounds for challenge. I will not answer, Judge Pohl declares.

With due respect, your honor, she responds, these questions go to your relevant knowledge and expertise in these areas. It is true that you have a right to refuse to answer, but I will continue to ask questions pertaining to these areas. You mentioned earlier your role in the Abu Ghraib case. More than one defendant was accused of detainee abuse, right? Yes, but there was not a joint trial, if that is your question, replies Judge Pohl. Joint trials are rare, right? Indeed they are.

She moves to capital cases: did the court have any experience with them during his law practice? Judge Pohl had some such experience, albeit under a different system, in the 1980s.

“Bormann” in the above colloquy is Cheryl Bormann, a long-time government lawyer. Although apparently not a Muslim, she donned a hijab for the proceeding and demanded that other women in the courtroom do so as well:

A female defense attorney, who is not Muslim, wore the traditional Islamic hijab to the military court staging the trial of five Guantanamo Bay prisoners accused of the September 11 attacks yesterday.

Cheryl Bormann, 52, who represents Walid bin Attash, said that her client had demanded she wear the clothing and insisted that other women at the hearing also wear ‘appropriate’ clothes out of respect for his religion.

She asked that other women follow her example so that the defendants do not have to avert their eyes ‘for fear of committing a sin under their faith’, according to Fox News.

This is the position consistently taken by radical Muslims, that wherever they go they are surrounded by a sharia zone to which everyone else must bow. The arraignment dragged on for hours, in part because the defendants refused to cooperate.

Self-proclaimed ‘mastermind’ Khalid Sheikh Mohammed, wearing a turban and white tunic, refused to answer the judge’s questions. Mohammed had been asked if he was satisfied with his U.S. military and civilian lawyers.

‘I believe he’s deeply concerned about the fairness of the proceeding,’ said his civilian lawyer, David Nevin.

I am deeply concerned about the insanity of the proceedings, but it looks as though we will have to endure them for years to come:

The arraignment is ‘only the beginning of a trial that will take years to complete, followed by years of appellate review,’ attorney James Connell, who represents defendant Ali Abd al-Aziz Ali, told reporters gathered at the base to observe the hearing.

Traditionally, military tribunals have had the virtues of speed and efficiency. In an effort to impress observers around the world, however, the Obama administration has devised new rules for this proceeding. Based on what we have seen so far, this forum represents little or no improvement over a civilian trial. And the idea that anyone will be impressed by the elaborate “due process” that we accord to terrorists, along with countless opportunities to insult us and their victims and to preach their jihadist ideology, is fanciful. What most international observers will conclude, is that we are crazy.


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