UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 MJ [COL POHL]: Sure. Would it be helpful to take a short recess? 3 DC [MR. NEVIN]: 4 MJ [COL POHL]: Yes, Your Honor. Okay. Commission will be in recess for 5 15 minutes. 6 [The Military Commission recessed at 1402, 28 January 2013.] 7 [The Military Commission was called to order at 1426, 28 8 January 2013.] 9 MJ [COL POHL]: Commission is called to order. 10 parties again are present that were present when the 11 All commission recessed. 12 Mr. Connell. 13 LDC [MR. CONNELL]: B. 14 MJ [COL POHL]: Okay, then we will do B. 15 16 B? It took one vote for B. DC [MR. NEVIN]: No, no, we got five, six votes for B. 17 No question about that. But, Your Honor, I want to say, I 18 take it that B means that we are going to do this in a 505 and 19 that some portion of this will turn out to be closed or 20 secret. 21 proceedings being closed, because they deal with preservation 22 of evidence of a detention facility. 23 to Mr. Mohammad. And on behalf of Mr. Mohammad, I object to It's a critical matter It's central to the case as far as he's UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1444 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 concerned. 2 MJ [COL POHL]: 3 LDC [MR. NEVIN]: 4 Mr. Nevin ---I object to the proceedings being closed here. 5 MJ [COL POHL]: Okay. Let's do the 505(h) hearing, and 6 then if we do close proceedings, you can object. 7 there's no decision been made whether proceedcings will be 8 closed or not, got it. 9 LDC [MR. NEVIN]: 10 MJ [COL POHL]: 11 LDC [CDR RUIZ]: 12 Because Thanks, Your Honor. No problem. Judge, I would just simply adopt Mr. Nevin's argument on behalf of Mr. Hawsawi. 13 LDC [MS. BORMANN]: 14 I'm sorry. I couldn't hear. [Due to the security button being pushed, chief 15 security advisor and attorney advisor conferred with the 16 military judge.] 17 MJ [COL POHL]: Trial counsel, note for the record that 18 the 40-second delay was initiated, not by me. I'm curious as 19 to why. 20 got the issue. 21 of his motion that is unclassified. 22 discuss this now, let me know, but I'm just trying to figure 23 out. What Mr. Nevin said is, if we need to go into -- I What Mr. Nevin said is simply on the caption If you don't feel we can UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1445 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 TC [MS. BALTES]: 2 MJ [COL POHL]: We can address it in 505(h). I want to address this too because I 3 want -- if some external body is turning the commission off 4 under their own view of what things ought to be, with no 5 reasonable explanation because I, there is no classification 6 on it, then we are going to have a little meeting about who 7 turns that light on or off. 8 TC [MS. BALTES]: 9 I understand and I can provide additional explanation at the 505(h) hearing. 10 MJ [COL POHL]: 11 Sure. Exactly what he said. Mr. Nevin. 12 DC [MR. NEVIN]: Your Honor, on behalf of Mr. Mohammad I 13 would like to know who has the permission to turn that light 14 on and off, who is listening to this, who is controlling these 15 proceedings, or controlling that aspect of these proceedings. 16 MJ [COL POHL]: 17 DC [MR. NEVIN]: Got it. I was under the impression that the 18 court CSO was, commanded that light in this process. 19 behalf of Mr. Mohammad respectfully I request ---- 20 MJ [COL POHL]: I understand. So on We will address that at 21 the 505(h) hearing, then we will put it on the record if we 22 can. 23 But I'm not sure -- I will leave it at that. LDC [MS. BORMANN]: Judge, on behalf of Mr. Bin'Attash UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1446 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 we join in Mr. Nevin's request and we note that Mr. Nevin 2 repeated the name of his motion which I won't repeat right now 3 for fear of setting off the 40-second delay, but my signature 4 is attached to that motion. 5 MJ [COL POHL]: 6 LDC [CDR RUIZ]: I got it. Judge, we adopt Mr. Nevin's argument as 7 well as Ms. Bormann's. I think the main concern is that 8 moving forward from this point forward we know there is 9 another body or party who is in control of this proceeding in 10 turning that light on and off. 11 we can only assume that maybe they are monitoring additional 12 communications, perhaps when we are at counsel table. We know 13 we have green lights that have the ability to record. We 14 think this is an answer and question we have to have precedent 15 to proceeding with this commission. 16 MJ [COL POHL]: Got it. Before we proceed any further, Got it. What we will do at 17 this time is discuss with each accused his right to be present 18 and his choice if he so desires to waive that presence. 19 way I intend to proceed is to slowly go through the entire 20 list of rights and ask each accused individually if they 21 understand their rights rather than going through it five 22 times as I have done before. 23 Mr. Nevin. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1447 The