Mark Denbeaux (left), Charles Church and Navy Commander Patrick Flor, lawyers for Abu Zubaydah, explained to reporters their client’s decision not to testify Friday.
Guantanamo Naval Base, Cuba – The May pretrial session in the Sept. 11 case wrapped up on Friday with the judge weighing whether a defendant can truly “voluntarily” waive to attend the hearings if he or his lawyers say he is doing so for medical reasons.
Walter Ruiz, the lead attorney for Mustafa al Hawsawi, has litigated a host of issues related to his client’s physical condition, including rectal injuries that the lawyer says resulted from “sodomy” under the guise of medical care during his time in CIA captivity.
On Friday, Ruiz argued to Army Col. James Pohl that he should order the government to provide his client with a video and audio feed at the Camp 7 detention facility for high-value detainees so he can avoid being transported to and sitting in court. Ruiz also wants his team to be able to teleconference with al Hawsawi during proceedings so he can “fully engage and participate” in the defense against charges that carry the death penalty.
Judge Pohl requires that defendants come to the first day of each pretrial session but allows them to waive attendance on subsequent days – so long as their waiver is knowing and voluntary. Defendants who choose not to attend must sign a waiver form every day in the presence of a Staff Judge Advocate, who then testifies at the start of each hearing about the voluntariness of the waiver. Al Hawsawi’s four co-defendants waive their presence on occasion but not as often as he does.
Pohl told Ruiz that in arguing for the new accommodations he was getting close to saying al Hawsawi’s absence was not actually voluntary, both on Friday and on prior days when al Hawsawi was not there. Pohl made it clear that if a waiver was not voluntary he would order the guard force to bring the defendant to court.
“It is a real difficult line for us,” Ruiz acknowledged.
A member of the prosecution team, Air Force Maj. Christopher Dykstra, told Pohl he should reject the motion. The relevant caselaw, he said, supports the government’s position that a judge should defer to the detention facility when it comes to operational matters. The guard force of Camp 7 transports the defendants to the Camp Justice court complex at the start of the day of each open hearing. (The defendants cannot attend closed hearings in which classified information is discussed.)
Last August, al Hawsawi had an operation – described by Ruiz as corrective surgery for rectal damage and by Dykstra as a hemorrhoidectomy – but continues to suffer from pain and bleeding, his lawyers say. Dykstra noted that a Senior Medical Officer testified in December that al Hawsawi should be well enough to sit through proceedings; Ruiz recalled for the judge that the officer also said the defendant would suffer serious pain until he healed.
The al Hawsawi team also seeks to have attorney-client meetings at the Camp 7 detention facility instead of in a different location of the detention zone, to avoid the transport, and for the guard force to employ “alternative means of transporting” the client when he does need to be moved.
Dykstra said that any changes should be “narrowly tailored” and suggested maybe using extra cushioning in the van currently used. Al Hawsawi sits on a pillow when he comes to court.
Pohl did not rule on the motion Friday. But he said he did not want to accept a fictional waiver and told Ruiz to inform the court if he ever learned that al Hawsawi’s decision was not voluntary. Ruiz said that he would comply.
The next round of pretrial hearings is scheduled for two weeks in July.
At the concluding press conference Friday, Steven Hagis, who lost his son, Steven M. Hagis, in the World Trade Center attack, said that the defendants should not be able to miss court.
“That’s not right with me,” Hagis said.
His son was a vice president at Cantor Fitzgerald. Hagis explained how his son saved a paraplegic during the 1993 World Trade Center attack. On Sept. 11, 2001, he convinced a colleague who was not feeling well to stay home instead of coming into the office.
“That’s my son,” Hagis said.
Victim family members who spoke at the press conference, and in a meeting with reporters the day before, expressed concern over the pace of the litigation but praised the efforts of the prosecution team led by Army Brig. Gen. Mark Martins.
(Related: Read the article on the first two days of the session, “Sept. 11 Hearings Resume with Debates over Military Tribunal’s Jurisdiction.”)
Abu Zubaydah Chooses Not to Testify
The highly anticipated main event for Friday was the testimony of Abu Zubaydah, who is not charged in the case. Zubaydah was the first detainee to go through the CIA’s “enhanced interrogation techniques” that defense lawyers and other critics describe as an illegal torture program.
Zubaydah serves as a liaison between detainees and guard staff at Camp 7 and was expected to support defendant Ramzi bin al Shibh’s claims that he is being subjected to disruptive noises and vibrations at the facility. However, it was disclosed Thursday night that he chose not to testify after meeting with his lawyers, civilians Mark Denbeaux and Charles Church and military counsel Commander Patrick Flor of the Navy.
After Friday’s proceedings, the lawyers explained that the parameters for testimony set by the judge were one-sided and would not allow Zubaydah to be presented fairly. They said that the government would have “free rein” to cross-examine their client about his bias against the U.S. Zubaydah, meanwhile, would be limited to testifying on direct examination about certain camp conditions and interactions – and not provide any testimony on his experiences at CIA black sites. The limitations would have precluded the broader examination of Zubaydah’s treatment by the U.S. that his attorneys feel is necessary.
Denbeaux, a Seton Hall law professor, said his client was extremely disappointed about not testifying but promised that he would soon tell his story in another forum.
“He has a lot to say,” Denbeaux said.