The trip from Joint Base Andrews, Maryland, to Guantanamo Bay for this week’s pre-trial hearings in the military commission against the five defendants accused of roles in the Sept. 11 terrorist attacks began early Saturday, leaving plenty of time for discussions about what might happen when Monday came around – and whether the case, which began with the arraignment in May 2012, would finally move forward.
The hearings are a prelude to the long-awaited trial of the individuals charged with planning and financing the attacks that left nearly 3,000 dead. Due to the delays, no trial date is set for the five defendants who have been held at Guantanamo Bay since 2006, after time in CIA custody.
The key issue scheduled for the start of the week was a potential conflict created by the FBI’s investigation into the defense team for Ramzi bin al Shibh, a revelation from last year that has been the biggest impediment to progress in the hearings. It remains unclear if bin al Shibh’s team, led by Buffalo-based attorney James Harrington, will continue to represent him, even though the investigation has been concluded without charges being filed.
The removal of the defense team could create a fresh set of delays for the proceedings, regardless of whether the judge, Army Col. James Pohl, decides to sever bin al Shibh from the case – a move strongly opposed by the prosecution, led by Army Brig. Gen. Mark Martins. Two weeks of hearings are scheduled to address approximately 40 pending motions.
By the end of Tuesday’s hearing, however, the parties had not yet begun to resolve the conflict issue. Just minutes into the hearing on Monday morning, another of the defendants, Walid bin Attash, told the judge that he “would like to know what are the procedures for self-representation” – a statement that surprised everybody, including his lead counsel, Cheryl Bormann, a civilian defense lawyer from Chicago. Bin Attash told Pohl that he had asked his attorneys about how going pro se would work, but the attorneys did not know.
Pohl called a recess so that Bormann could talk to her client. When the hearing resumed, Bormann told the court that Bin Attash had lost faith in his defense team. She said that her client, who is held in the secretive Camp 7 detention facility, believed the proceedings were a continuation of the torture he endured at the CIA black sites from 2003 to 2006.
“He feels like he has no relief from the torture and that everything is orchestrated by the United States Government here, so that it takes away any of his ability to make voluntary decisions,” Bormann said.
The lack-of-trust issue allowed Bormann to give a partial run-through of the controversies that have stalled the case and generated dozens of pre-trial motions: suspected monitoring of attorney-client conversations, intermittent seizure of attorney-client materials, the attempted FBI infiltration of a defense team and the twist that cut short last February’s hearing – that one of the defense translators had worked at a CIA black site.
“So Mr. Bin Attash says to me 'what good can you do,' and I can't tell him that I can do him any good,” Bormann said.
The revamped military commissions under the 2009 Military Commissions Act were meant to provide due-process improvements to earlier commissions from the Bush Administration. But defense lawyers have generally considered these to be superficial and have regularly cited difficulties in establishing effective relationships with their clients, who are not allowed to see classified information relevant to the charges.
In addition to Bin Attash and bin al Shibh, the other defendants in Courtroom II of the Expeditionary Legal Complex at Camp Justice are Ammar al Baluchi, Mustafa al Hawsawi and accused plot mastermind Khalid Sheikh Mohammed. All defendants are facing the death penalty and are entitled to civilian counsel, as well as military lawyers, paid for by the government.
Bormann told Pohl that she could not advise Bin Attash about his pro se rights as she would with a client seeking to exercise his 6th Amendment rights in a normal criminal case. Her client doesn’t have access to a law library and could not make a phone call to her, or anyone else serving as standby defense counsel, to discuss case strategy.
“This is like no other court,” Bormann said. “So I can't possibly advise Mr. Bin Attash of his rights because I, frankly, don't know what they are.”
Brig. Gen. Martins was not in court at the time. Special prosecutors from the Department of Justice were at the government’s table to address the conflict issue surrounding the FBI’s investigation into the bin al Shibh team. Martins’ team is walled off from the special prosecutors.
With the conflict matter tabled for the day, Pohl had the special prosecutors leave and brought in the government’s trial team. Martins told Pohl that the starting point should be a guidebook for military judges that contains a colloquy for the judge and defendant to establish a voluntary waiver of rights to counsel.
Bormann said, however, that Martins missed her client’s point that the endless delays and intrusions prevent him from making any voluntary decisions. Pohl was somewhat frustrated by what he saw as the implication – that no trial could ever take place. Bormann said that was not her position. She said that any advice about pro se representation would need to be detailed and specific to this commission.
Pohl called for a recess until Tuesday morning, allowing him to circulate a proposed order on the pro se advisement to prosecutors and the defense lawyers. Pohl wants input from all the defense teams, as any defendant could express an interest in self-representation.
Much of Tuesday’s 85-minute hearing was taken up by a lengthy exchange between Pohl and the lead attorney for al Baluchi, James Connell, about how defendants in pro se positions might review classified information. The pair discussed a possible “middle path” that would allow pro se defendants some access to classified material that was necessary for their defense.
Connell, who is based in Cabin John, Md., said that the process would create an “ugly situation” and was “one of a hundred thousand” reasons why self-representation was a bad idea in this case. Echoing Bormann, Connell cited a lack of privacy, law-library access, means to review computer files as well as the government’s failure to provide “any rehabilitation for torture.”
After Connell finished, Bormann told Pohl that the temperature in her client’s holding cell was turned down so low since the Monday hearing that he suffered hypothermia, and that the guards refused to make any adjustment – an incident that “brought him back to his torture.” On the pro se issue, she said Bin Attash was afraid that he would not get enough time to fully weigh the pros and cons of self-representation.
Pohl said that Bin Attash would have adequate time. He asked all the parties to submit any desired changes to his conduct order so that hearings could resume Wednesday morning.
“We can’t rush through this,” Pohl said.
As Tuesday carried on at the base, parties to the case said that the next hearing would in fact be Thursday as preparation of the conduct order was expected to take into Wednesday.