The military commission against five defendants accused of planning and financing the Sept. 11 terrorist attacks took a step forward this week when the judge, Army Col. James Pohl, ruled that a previous federal criminal investigation into the defense team for Ramzi bin al Shibh did not create a conflict of interest for the defendant. The ruling allows the case to move forward without Bin al Shibh first having to make a decision about waiving any alleged conflict.
The conflict issue has played an important role in stalling substantial progress in the proceedings for about a year and a half. The investigation into members of the Bin al Shibh team did not result in any criminal charges. Pohl said Monday morning he was satisfied that the investigation was complete and that “no further action will be taken on the investigation by any entity of the United States Government,” allowing the team, led by James Harrington, to stay on the case for now.
However, Pohl also ordered the government to turn over information about the investigation to defense lawyers – not necessarily limited to Harrington's team – which they could use to to file future motions about possible attorney-client conflict issues.
After a short break, Monday’s hearings at the Camp Justice legal complex on Guantanamo Bay ended abruptly when another defendant, Walid bin Attash, raised the issue that prompted last week’s delays – his interest in learning more about representing himself.
Bin Attash told Pohl that he was ready to discuss self-representation.
However, his lead attorney, Cheryl Bormann, told Pohl that a matter had arisen in the preceding days that would affect the advisement of pro se rights. Bormann could not specify in open court what had happened other than to say the matter involved defense-team “work product” and that it may result in her withdrawal from the case.
Pohl called a recess until Wednesday morning so that Bormann could investigate whatever had transpired and be in a better position to advise her client.
The other defendants in the case are Ammar al Baluchi, Mustafa al Hawsawi and accused plot mastermind Khalid Sheikh Mohammed. All face the death penalty for their alleged roles in the Sept. 11, 2001, attacks, though no trial is yet scheduled given the abundance of unresolved pre-trial motions. All were in court on Monday but al Hawsawi, who waived his right to be there.
Arguments on the conflict matter began in a rare Sunday hearing before concluding on Monday. Last fall, Pohl had ruled that a conflict did not exist for the defendants, with the exception of Bin al Shibh. The FBI had also investigated a linguist for the Mohammed team, but Pohl found that this could not have affected “trial strategy or intensity of effort” because the defense team did not know about the investigation. Bin al Shibh’s situation required “further examination,” Pohl ruled.
At issue this week was whether Pohl should order the government to provide additional details about the investigation to Harrington and his team so they could more fully discuss with Bin al Shibh the extent of a potential conflict, allowing him to decide on a waiver.
At the start of the Sunday hearing, at which no defendants were present except Bin al Shibh, Harrington suggested that his client might have a difficult time participating in a discussion about the conflict issue. Bin al Shibh has long complained that vibrations and sounds are being pumped into his cell at the Camp 7 detention facility, preventing him from sleeping, and he claimed that it happened again after last Thursday’s proceedings.
“He is in a very bad way,” Harrington said. “He believes that the vibrations are still happening. They are keeping him awake. He gets no relief from it, and it puts him in a position where it's very difficult for him to knowingly and actively participate in these proceedings.”
David Nevin, the lead attorney for Mohammed, added that his “client has reported a similar occurrence.”
Pohl denied Harrington’s motion for a continuation, and the parties moved on to the substance of the conflict issue.
Fernando Campoamor-Sanchez, a Justice Department lawyer on the “special review team” litigating the conflict matter, portrayed the current state of affairs as straightforward: With the investigation concluded, there could be no actual or potential conflict of interest. He urged Pohl to rule accordingly. (The chief prosecutor of the military commission who will be trying the 9/11 defendants, Army Brig. Gen. Mark Martins, is walled off from these proceedings and his team was not in court during the conflict proceedings.)
Campoamor-Sanchez’s position met with multiple objections from the defense side of the room. Harrington said that the government’s court filings attesting to the closure of the investigation included a disconcerting caveat – that the investigation was closed “at this time” – which may mean that it could reopen.
“Unless there is a more firm representation that there is nothing pending and they have no intention of reopening this allegation, I still think that it hangs out there,” Harrington said.
He said he needed more discovery on the issue so that he could help Bin al Shibh make an informed decision about whether to keep his legal team.
“I am in the dark,” Harrington said.
Also voicing concern was Air Force Lt. Col. Julie Pitvorec, who was assigned as a special independent counsel to advise Bin al Shibh on the conflict issue. Pitvorec has learned the details of the investigation but has not been able to discuss them with Bin al Shibh because of the restrictions on classified information.
Pitvorec said that the investigation into the Bin al Shibh team members targeted the “the manner in which they were conducting their representation” of the client. She saw, at the very least, an appearance of a conflict. She said that the investigation would have had a “chilling effect” on defense counsel.
When Nevin addressed the court, he displayed on the courtroom monitor a printout of an Oct. 2 Reuters article that provided an account of the FBI investigation into Bin al Shibh’s team. According to the article, an investigation was touched off by a phone call made by a defense team translator to Bin al Shibh’s brother. If the article was correct, Nevin said, it meant the government had been investigating something that defense teams “are required by law to do” by working with family members on mitigation issues.
“It’s not something that’s optional,” Nevin said.
Nevin had filed a motion for reconsideration of Pohl’s earlier ruling on the conflict issue. Now, he said, he wanted Pohl not to rule until he could receive more information.
The lead attorney for al Baluchi, James Connell, said that the defense teams had been “laboring under a potential conflict” for the past 18 months, and that his team had changed its tactics after learning of the investigation. He also wanted Pohl to reconsider last year’s ruling on the conflict issue and has been pushing for more discovery as a result of the uncertainty he sees regarding the details of the probe.
“We honestly still don't know who its targets were, other than members of the Bin al Shibh team,” Connell said. “And once we get the actual discovery and the actual documents, it may turn out to be broader than that.”
Campoamor-Sanchez described Connell’s position as a “sideshow,” and said he would provide Harrington with more information about the investigation after Pohl had ruled on the conflict issue.
For his part, Pohl wasn’t convinced that an investigation, if closed, presented a potential conflict of interest. Instead, he said, it may be a “representational” issue that touches on the adequacy of legal representation during the period in which defense counsel knew about the probe and acted differently. Either way, Bin al Shibh would at some point need to know more about the investigation, he suggested.
“I see he needs to know what happened, I got that,” Pohl said during an exchange with Pitvorec. “But it strikes me it slides more into the representational capacity as opposed to waiving a conflict that no longer exists.”
But Pohl hadn’t fully decided by the end of Sunday's hearing, and allowed additional arguments on Monday.
Campoamor-Sanchez began Monday’s hearing by rearticulating some of his arguments from the previous day. He referred to the position taken by defense lawyers as untenable: “They are complaining about being in this cloud and yet they want to prolong this cloud.”
He told Pohl again that he should rule on the conflict, then the government could provide discovery to the defense lawyers.
Connell responded with a colorful hypothetical – his best friend telling him that he had an affair with his wife and then giving him “a letter, a redacted letter, saying that the affair was closed at this time and that I should just forget about it and move on.” Connell said he would have three questions for his wife and his best friend, covering, in order: what they were thinking; what actually happened; and whether he could trust them moving forward.
Pohl chimed in a with a fourth question: Would a person in that situation want to stay married? His point was that the matter before him was “a representational issue.”
Connell responded the first three questions should be answered first. He urged Pohl to order discovery before ruling on the conflict issue, reversing the order of steps that Campoamor-Sanchez had suggested.
In the end, Pohl’s siding with the government will likely end up determining only the sequence of future litigation of the conflict issue. He also ordered the special review team to provide discovery to “any team that the discovery is relevant to, including but not necessarily limited to Mr. Harrington and his team.”
“Obviously this issue may come up again once defense counsel have reviewed the information provided by the government,” Connell said in a brief post-hearing interview.