Broken Trust with Counsel Claimed in Sept. 11 Hearings

Judge Refuses to Remove Lead Defense Attorney; Case Moves into Discovery of CIA Interrogations

Guantanamo Naval Base, Cuba – Pretrial hearings in the 9/11 case at Guantanamo Bay resumed this week with one of its signature twists when a defendant – and his lead civilian defense attorney – both asked the judge to remove the attorney from the four-year-old proceedings.

“The trust has been completely eroded,” Cheryl Bormann said of her relationship with Walid bin Attash, who faces the death penalty for allegedly playing a key planning and training role in the Sept. 11 terrorist attacks.

Just minutes earlier, the judge, Army Col. James Pohl, had denied Bin Attash’s request to fire Bormann and another civilian attorney, Michael Schwartz. Bin Attash had also tried, and failed, to fire Bormann in October.

In seeking to leave the case herself, Bormann blamed her broken relationship with Bin Attash on what she sees as a deeply flawed military commissions system as well as on interference by outside government agencies. She cited several issues that have troubled defense attorneys over the four years of litigation – the earlier presence of listening devices in attorney-client meeting rooms, the seizure of privileged legal materials at the detention facility, the lack of telephone access to clients and the infiltration of the defense teams by government agents.

Bormann, a well-known death penalty lawyer from Chicago, also said that her client has not been able to have telephone conversations with family members, even after his mother died.

“’What good can you do?’” Bormann said, paraphrasing Bin Attash’s sentiments towards her. She added her client was “damaged” by torture at CIA black sites and by being held virtually incommunicado at Guantanamo Bay, where he has been since 2006.

One of the prosecutors, Ed Ryan, urged Pohl in the “strongest possible manner” to reject Bormann’s “out-of-the-blue” request. Ryan said that her explanation hardly met the high standard for an attorney’s withdrawal from a case and that her leaving would cause more delays. The two-week session scheduled for Feb. 16-26 is the fifteenth round of hearings for the defendants since their May 2012 arraignment.

Bin Attash and the four other defendants – who include Ramzi bin al Shibh, Ammar al Baluchi, Mustafa al Hawsawi and the alleged plot mastermind, Khalid Sheikh Mohammed – are being tried under the Military Commissions Act of 2009. Pohl told Bormann that he wasn’t “vouching for” or “criticizing” the system created by the act but that he had to work within it.

“I’m just a judge,” Pohl said.

Though he denied Bormann’s request to withdraw from the case,  he allowed her to submit a written motion renewing her argument. Under the 2009 law, all defendants receive government-paid military counsel as well as lawyers experienced in death penalty cases.

Pohl also denied a motion by Mohammed's lead attorney, David Nevin, to halt the proceedings until the government restores the type of security clearance his interpreter needs to continue meeting with Mohammed. Nevin said that the interpreter's loss of clearance, which occurred last summer, was of particular concern because of past FBI investigations into members of defense teams.

After a recess to look into the issue, prosecutor Clay Trivett told the court that the hold-up in the clearance being restored was not due to any misconduct related to the commissions. Because Mohammed speaks decent English, Pohl said that the proceedings could move forward for now but that he wanted another update on the interpreter's status by March 15, before the next scheduled hearings in early April.

Next up for the court on Thursday were arguments on the government's motion to consolidate defense motions to compel discovery on the CIA's rendition and interrogation program.

Who Controls Defense Decisions?

Last fall, Bin Attash tried to fire Bormann for reasons that were never made public. After a private meeting with Bin Attash and his team on Oct. 28, Pohl ruled that “good cause” did not exist to sever the attorney-client relationship. He said then that a defendant being unhappy with his lawyers did not rise “to the level of an irreconcilable conflict or complete breakdown of communications.”

Bin Attash renewed his request Tuesday morning, arriving with a letter for the judge that required translation from Arabic. On Wednesday, Pohl said that the letter and a previous one from Bin Attash had also failed to establish good cause to replace counsel. However, the judge added that he would order the military commission’s chief defense counsel to find Bin Attash an independent lawyer to advise him “on this issue only" if he wants to file a written motion.

After hearing the ruling, Bin Attash said he wanted to leave the courtroom and that he would avoid all attorney meetings and court proceedings as long as Bormann and Schwartz stayed on the case. (At his request, his lawyers were already sitting in the back of the courtroom instead of next to him at his table.) Guards were in the process of removing Bin Attash when Bormann unexpectedly approached the podium to say she wanted to withdraw from the case; the judge decided that Bin Attash should stay in court until Bormann's request played out.

In addition to her criticism of the commissions system, Bormann told Pohl that he had exacerbated an already strained attorney-client relationship during his exchange with Bin Attash on Oct. 29. At that time, when rejecting Bin Attash's first request to fire Bormann, he said that the defendant was “the decision-maker” when it came to disputes with his lawyers over what motions to file. Though Pohl immediately acknowledged the issue was more complicated and asked defense attorneys for briefing on the topic, Bormann said the statement did damage.

“You misstated the law,” Bormann said, adding that her client was given the impression that he could tell his attorneys what to do.

“You can blame me if you like, that’s fine,” Pohl said.

In November, the lead civilian attorneys for al Baluchi, James Connell, filed a briefing on the topic in response to Pohl's October request. In it, he said a defendant has "control over the objectives of the representation" and certain key decisions – such what plea to enter or accept, whether to proceed without counsel or whether to testify or cooperate with the government – but that the lawyer has "control over strategy and tactics," including what motions to file.

In court this week, defense lawyers and Pohl agreed that the division of responsibilities becomes more complex when the motions involve choice of counsel.