(The prosecution team led by Army Brig. Gen. Mark Martins, above, wanted to be heard by the judge on a defendant’s request to have his lead attorney replaced after four years on the case. Photo by McGeorge School of Law.)
Army Col. James Pohl moved past another issue that could have delayed progress in the 9/11 case at Guantanamo Bay by ruling that one of the five defendants did not establish “good cause” in seeking to have his lead attorney replaced.
Judge Pohl gave defendant Walid bin Attash the news at a Thursday morning hearing, which followed a closed hearing on Wednesday afternoon between the judge, the defendant and his attorneys.
The purpose of that hearing – held privately to protect privileged attorney-client communications and defense-team work product – was for Pohl to discuss with Bin Attash his reasons for wanting to sever his relationship with Cheryl Bormann, who has represented him for four years. Bin Attash wants to keep his military defense lawyer, Air Force Maj. Michael Schwartz.
Bormann and Schwartz have not discussed in open court any details about what had transpired since this round of hearings began on Oct. 19 to create problems on their team. This week, they provided sealed pleadings to Pohl on the situation.
“Based on what you told me yesterday … you have failed to meet that burden” of good cause, Pohl told Bin Attash. He added that Bin Attash still had the right to tell Bormann, Schwartz and any other team member “what to do.”
He also said that he would provide Bin Attash with a written order, translated in Arabic, to fully explain his rationale.
Pohl called a recess so that the defendant could speak with his attorneys about the decision. Bin Attash also used the recess to pray, laying his rug to the side of his defense table while guards stood watch.
Question Over Who Controls Defense Team, and When
When the hearing resumed, Schwartz told Pohl that Bin Attash had a question about the judge’s remark about his ability to control defense decisions. Pohl elaborated, telling Bin Attash that he could also tell his lawyers “what not to do.” An example: If Bormann’s team wants to file a motion, Bin Attash could tell them not to.
“That’s my view of the law,” Pohl said. “Does anybody disagree with it?”
In fact, a few defense lawyers did, including David Nevin, the lead lawyer for accused plot mastermind Khalid Sheikh Mohammed. Nevin said that working out “the parts and sub-parts” of this issue was “very complex.”
Pohl acknowledged that his statement was “too broad.” He asked Nevin to share more of his thinking on the subject, but the attorney said it would be better to research and brief the issue.
Pohl then informed Bin Attash that he wanted attorneys to provide input due to the complexity of the issue.
“Next time we meet, I’ll come back and tell you about it,” Pohl said.
“That’s good, there is no problem,” Bin Attash responded, according to the live translation.
Bin Attash, Mohammed and the other three defendants – Ramzi bin al Shibh, Ammar al Baluchi and Mustafa al Hawsawi – all face the death penalty for their alleged roles in the Sept. 11 terrorist attacks. They were arraigned in the military commission in May 2012. As on the past two days of open hearings, all were present on Thursday at Courtroom II of Camp Justice at Guantanamo Bay except al Hawsawi, who waived his right to attend.
“Unless he his hiding back there,” Pohl said of al Hawsawi, who sits in the fifth row of defense tables.
“He is not, judge,” al Hawsawi’s lead attorney, Walter Ruiz, responded.
Government Seeks Closed Hearing Transcript
The Thursday hearing began with a debate between Bormann and one of the prosecutors, Ed Ryan from the Justice Department, about whether a redacted transcript of the closed Wednesday hearing should be turned over to the government. The prosecution team, led by Army Brig. Gen. Mark Martins, said it opposed Bormann leaving the case due to the delay it would cause.
Bormann told Pohl that – at the most – the government should receive redacted portions of the hearing transcript. But she argued the government should not actually see any of the transcript because it would provide insight into Bin Attash’s “very thought process.” Pohl could decide that issue without any input from prosecutors, Bormann said.
Ryan insisted that the government had to be heard on the issue of good cause, and that he was operating in a “vacuum” without knowing more about what was discussed. The prospect of Bormann leaving the case “affects everything in this courtroom, it certainly affects the United States of America,” he said.
Pohl agreed that the government “had a dog in this fight.” However, he indicated that because he was ruling that Bormann would stay on the case, it was unnecessary for him to strike a balance between providing some information to the government and protecting privileged communications.
Thirty-Plus Motions Remain
Pohl ruled on Monday that a conflict did not exist as a result of a now-closed investigation into the Bin al Shibh defense team. With that matter and Bin Attash’s representational issues resolved for now, the commission finally moved on to other pending motions. More than 30 motions on the calendar for the two weeks of hearings that commenced 10 days ago remained unaddressed – with about a day and a half left.
First up Thursday afternoon were defense motions to depose a former interpreter for the Bin al Shibh team who had also worked at a CIA black site. Hearings in February were cut short when the defendants recognized him. Pohl also wanted to tackle motions relating to his temporary order from January – issued in response to defense requests – preventing female guards from touching the 9/11 defendants as they were moved to and from proceedings. Secretary of Defense Ash Carter and the chairman of the joint chiefs of staff complicated arguments on this motion by criticizing the ban in a Senate hearing on Tuesday.
Marine Maj. Derek Poteet, Mohammed’s military defense lawyer, told Pohl that the comments presented “unlawful influence” concerns given that Carter is the judge’s “direct superior.” Pohl rejected Poteet’s request for an abatement of proceedings until the defense steam investigated the issue in more detail. Pohl also reminded the parties that guards filed equal opportunity claims against him because of the order, but he didn’t think that should delay proceedings. Witnesses for motions related to role of female guards were scheduled to appear on Friday.