A Wednesday morning hearing at Guantanamo Bay provided another twist in the military commission against five defendants accused of roles in the Sept. 11 terrorist attacks when Walid bin Attash told the judge he wanted a new lead attorney to replace Cheryl Bormann, a well-known death penalty lawyer from Chicago who has represented him for four years.
The current round of hearings – the latest in the lengthy process to bring the alleged 9/11 conspirators to trial - commenced last week with the first in a series of procedural challenges. On Monday, Oct. 19, Bin Attash asked for information about representing himself. Defense lawyers and prosecutors then spent the better part of the week ironing out with the judge, Army Col. James Pohl, a lengthy pro se advisement that could be used for Bin Attash as well as the other four defendants, should any of them also choose that course.
Today, Bin Attash said he wanted Bormann replaced though he wants to keep his designated military counsel, Air Force Major Michael Schwartz, who also has represented him for about four years. Pohl told Bin Attash that he would have to show “good cause” why his relationship with Bormann should be severed. He scheduled a closed hearing limited to Bin Attash and his attorneys for 2 p.m. Wednesday to discuss the issue with the defendant.
Bormann had alluded to a serious problem on the defense team at the tail end of this Monday’s hearing. That hearing dealt with a potential conflict created by the criminal investigation – now closed – into the defense team for Ramzi bin al Shibh. Pohl ruled that a conflict did not exist for al Shibh, resolving that matter for now.
After that ruling Monday, Bormann informed Pohl that undefined recent developments had complicated moving forward with the pro se advisement for Bin Attash. The judge gave her until Wednesday morning to investigate.
Bormann began Wednesday by telling Pohl “a lot has transpired” and explained that the pro se issue had evolved into a replacement-of-counsel request. As on Monday, she could not go into any detail in open court about the problems because they involve privileged communications with her client and defense-team work product. (The Miami Herald reported on Monday that Bormann had recently fired a longtime consultant on her team. The relationship of that event, if any, to the present situation is unclear.)
But Bormann and Schwartz informed Pohl they had learned enough new details about the situation to convince them that the judge should not, at this time, move forward with an inquiry into whether Bin Attash had good cause to replace lead counsel. Schwartz portrayed the situation as constantly evolving.
“The facts have changed every day,” he said, adding that new information had "affected my own analysis of good cause.”
Schwartz said he needed to continue investigating the matter so that Bin Attash could be “fully informed” before making his decision. But Pohl was unconvinced that facts presently unknown to Bin Attash should block the defendant’s immediate wish to exercise his rights.
“When does it end?” Pohl asked.
Schwartz said that his side needed to interview “a number of people” and predicted he could be ready by the case’s next scheduled hearings in December. Pohl rejected the idea of such a delay, opting instead for a closed hearing later in the afternoon.
If Pohl finds good cause to remove Bormman, replacing her could take months given the complexity of the litigation and process of receiving security clearances.
After Bin Attash said that he wanted Bormann off his case, Pohl told him that he would review with him his rights to counsel, a process covered in the May 2012 arraignment.
“I know it’s been a while,” Pohl said.
Because Bin Attash and the other defendants are facing the death penalty, they are entitled to “learned defense counsel” experienced in capital cases as well as military lawyers, all of whom are paid for by the government. If Bormann is severed, the commission’s chief defense counsel, Marine Gen. John Baker, would find her replacement. Pohl told Bin Attash that the defense office had a pool of civilian lawyers that would be at least willing to consider taking his case. (Baker could also go outside the existing pool.)
Bin Attash said he understood his rights. But uncertainly arose over whether Pohl or Baker had final say in whether Bormann remained.
Baker had met with Bin Attash before the hearing Wednesday, and Bormann presented Pohl with a sealed declaration by Baker once it started. Schwartz also told Pohl that he wanted Baker to learn more about the defense-team situation so that Baker could make a determination about whether good cause existed for replacing Bormann. Baker sat at the back of the courtroom, as he has on other days, and talked with Bormann and Schwartz during breaks.
Pohl noted that a commission regulation put the decision to remove counsel in Baker’s court, but he said that was not the "state of the law.”
“People can write regulations all they like,” Pohl said, but he knew of no court where a third party could make a unilateral decision about removing a lawyer from a case after the lawyer had already appeared for the defendant.
“[Bin Attash] has to convince me,” Pohl said, "not General Baker."
Initially, Pohl told Bin Attash that he would need to be convinced in “open court.” Bormann said, however, that the process had to be conducted in the “least damaging” way possible to someone facing the death penalty. She said that her team's work product could be “taken by the government that wants to kill [Bin Attash] and then later used against him. ”
Ed Ryan, a Justice Department lawyer working on the trial team led by Army Brig. General Mark Martins, said that prosecutors wanted to be in the room during Pohl’s discussion with Bin Attash. He proposed a somewhat complicated process: Pohl would question Bin Attash; Bin Attash would give his answer to Schwartz; Schwartz would then “filter” out privileged information when conveying the answer to Pohl; and Pohl would ask Bin Attash if Schwartz’s filtered answer was accurate.
“Can we divide this sausage up this way?” Pohl asked Bormann.
Bormann responded that it was “impossible” – privileged and non-privileged information were too intermingled in the present situation.
Pohl called a recess and came back after about 15 minutes. He sided with Bormann, finding practical and legal problems with Ryan’s proposal, and called for a closed hearing so he could talk to Bin Attash directly.
David Nevin, the learned counsel for accused Sept. 11 plot mastermind Khalid Sheikh Mohammed, rose to tell Pohl that his client also wanted to be at the hearing. Pohl denied the request.