This post has been updated.The judge presiding over the 9/11 case at the Guantanamo military hearings had one of the five co-defendants forcibly removed from the courtroom after he objected that he was being deprived of his right to meaningfully participate in his case.
As Judge James L. Pohl on Tuesday morning asked each of the five men charged with perpetrating the September 11, 2001, terrorist attacks whether they understood their rights to be present in court and to waive that right if they don't want to attend hearings, Ramzi bin al Shibh, a Yemeni citizen accused of facilitating the attacks, objected that he hears so much noise in his prison cell in the Guantanamo prison camp at night that he can't sleep, preventing him from participating in his hearings in any meaningful way.
"I can't understand this treatment by the guard force," he said through a translator. Bin al Shibh has claimed for months that guards make loud banging and other noises near his cell at night, making it impossible for him to sleep. "If there's not an authority that can address these infractions I have to leave," he said.
Judge Pohl looked flustered. "I'll get back to that," he said, and proceeded to ask the remaining defendants whether they understood their rights to attend the proceedings. They all said they did.
Bin al Shibh's lawyer, Navy Lt. Cmdr Kevin Bogucki, then stood and attempted to explain his client's position. He's "incredibly tired" because of "the sounds he's exposed to in Camp 7," said Bogucki. Camp 7 is where the 9/11 defendants and other "high-value" detainees are held at Guantanamo. "That's why he's protesting," Bogucki said. "His presence has to be meaningful. If he's forced to attend too tired to pay attention, is his presence meaningful?"
Judge Pohl replied that this isn't the place to make that objection. If there's a problem, the judge explained, Bogucki can raise it in a legal motion and provide evidence.
But Bogucki said he doesn't have access to the Guantanamo prison's Camp 7, so he can't provide that evidence.
"So what do you want me to do about it?" asked Judge Pohl, saying he'd already previously ordered the guards to stop the noise. "Either it's happening, and the government's denying it, or it isn't happening, and your client has a mental problem."
Bogucki responded that he's already provided testimony from a psychiatrist who testified that his client "is not delusional." The guards are "flaunting the military commission's order," he said.
Ultimately, Judge Pohl and Bogucki agreed that Judge Pohl would once again ask Bin al Shibh if he understood his right to be present at the trial, with the understanding that he can present evidence of the noise later, perhaps by installing a recorder in the prison cell.
Bin al Shibh either didn't understand or didn't agree with the proposed resolution. Asked again by Judge Pohl whether he understood his rights, he responded: "I totally refuse to answer this question as long as the judge is taking position against me and against my allegations."
Judge Pohl instructed bin al Shibh that if he won't acknowledge his rights, he'll have to be present in court every day until he does. And since Bin al Shibh wouldn't stop shouting, now in English, the judge ordered the guards to remove him from the courtroom.
As guards surrounded and led the defendant out of the room, Bin al Shibh yelled that he's in a "secret CIA prison. Nobody knows it. Nobody investigates it. Nobody sees it."
Update: At the military commission's afternoon session, Judge Pohl once again asked Ramzi Bin al Shibh if he understood his rights to be present in the courtroom. Bin al Shibh answered that "it's not yes or no," at which point Judge Pohl cut him off and said he'd have to answer it as a yes or no question. Bin al Shibh insisted "it's torture" and Judge Pohl ordered the guards to forcibly remove him from the courtroom for the second time today. As he was being taken out, Bin al Shibh could be heard shouting: "I'm not a war criminal . . . ."
Judge Pohl explained to Bin al Shibh's lawyers that he cannot allow their client to answer with more than a "yes" or "no" because he doesn't know if Bin al Shibh might say something classified.