Michael Schwartz (left) and Edwin Perry, attorneys for Walid bin Attash, convinced the judge to postpone oral arguments because the team’s lead attorney was injured and could not attend.
No one could have bet on the specific turn of events that caused the latest delay in the Sept. 11 military commission at Guantanamo Bay – one of the lead defense attorneys falling and seriously breaking her arm, leaving her unable to attend the pretrial proceedings scheduled for Jan. 25-Feb. 3.
But from the perspective of the Marine who runs the Military Commissions Defense Organization, this type of complication was not only “totally predictable” but also avoidable.
“I have been warning about this for the past year,” Brig. Gen. John Baker said last week in an interview from his office at the Camp Justice compound at Guantanamo.
The Military Commissions Act of 2009 requires all defendants facing the death penalty to have “learned counsel,” meaning lawyers experienced in capital cases, in addition to military defense counsel, all paid for by the government. Cheryl Bormann serves in the learned role for Walid bin Attash, one of five men facing execution for allegedly planning and financing the Sept. 11 terrorist attacks.
Bormann, who is based in Chicago, suffered her injury in the Washington, D.C., area two days before the scheduled Jan. 23 flight from Joint Base Andrews to Guantanamo; she could not make the trip. The judge on the case, Army Col. James Pohl, eventually determined that while some business could take place in Bormann’s absence – including the deposition of an elderly witness who made the trip to Guantanamo – he could not proceed with the two dozen or so motions scheduled for oral arguments.
This latest trip to Guantanamo was slated to be the 20th pretrial session in the case, which dates to the May 2012 arraignment.
Baker first requested funding for a second learned counsel for each 9/11 team about five months after he became Chief Defense Counsel in July 2015. After conducting an assessment of his office, he concluded that there was too much work for one learned counsel for what is widely viewed as one of the largest and most complex criminal cases in U.S. history. He is concerned about burnout among the teams, even though each lead attorney is assisted by civilian and military lawyers as well as paralegals, analysts and investigators.
But Bormann’s fall also revealed the practical side of the issue, along with the fragility of the commissions system if any of the learned counsel becomes unavailable for longer periods. In past years, the judge has delayed proceedings for a day or two when a lead attorney was sick.
“Having just one learned counsel is a single point of failure for these proceedings,” Baker said Friday.
The Office of the Convening Authority is responsible for the overall management of the military commissions system, including these resourcing decisions. Before the change in administrations, that person was Paul Oostburg-Sanz, who was assigned to the position by then-Secretary of Defense Ash Carter in March 2015.
Baker said that Oostburg-Sanz approved other resourcing requests, such as funding additional paralegals and civilian attorneys. But the convening authority never made a decision despite numerous follow-up communications on the request for second learned counsels, who are paid at $183 per hour. The interim convening authority is Deputy Secretary of Defense Robert Work.
Baker said that he will renew the request, though he recognizes that Work has other items on his plate during the transition. Another wrinkle is President Trump’s imposition of a federal hiring freeze, which in addition to the learned counsel could also apply to the paralegal positions that have been approved but not yet filled. Baker said he hopes that Secretary of Defense James Mattis will seek an exemption from the freeze for the military commissions.
In his management and supervisory role, Baker does not represent any of the defendants. If his request is rejected, it will be up to individual defense teams to file a motion with Pohl to compel an appointment of additional counsel. Walter Ruiz, the lead attorney for Mustafa al Hawsawi, filed a motion for a second learned counsel back at the start of the case in 2012, which the judge denied.
James Connell, the lead attorney for Ammar al Baluchi, told reporters at the closing press conference that getting a “no” would be better than continued silence.
“It’s much easier to appeal a decision to the judge than to appeal a non-decision,” Connell said.
Connell, who lumbered around all week with a boot on his foot, added that he himself almost missed the proceedings due to an injured Achilles that ended up not requiring surgery.
“It’s only a matter of time before this happens again,” he said.
The Chief Prosecutor, Army Brig. Gen. Martins, would not comment on the request for a second learned counsel, saying that at the present time it’s a matter for the convening authority.
The next session in the case is scheduled for March 20-31, which, if the government has its way, will be about a year before jury selection in the case begins. Prosecutors proposed the March 2018 start date in a renewed motion for a trial scheduling order.
Connell and other defense attorneys said the proposed date was unrealistic. Ruiz said that, unlike other teams, his had not yet “objected outright” to the government’s plan. He wants al Hawsawi severed from the case and has consistently tried to minimize his client's alleged role in financing the attacks.
“Justice delayed is justice denied for Mr. al Hawsawi,” Ruiz said.
During the trip, Martins spoke to reporters about progress made in the case. Among the most important is the discovery process for evidence related to the CIA’s former Rendition, Detention and Interrogation (RDI) program, which defense attorneys say subjected their clients to torture.
For much of the information related to the CIA black sites, the government is seeking to provide defense teams not with the original classified evidence but with summaries and substitutions of evidence that first go to Pohl. The judge has issued several orders approving the government substitutions, and Martins said that CIA interrogation-related evidence is on its way to the defense teams.
But defense lawyers say they will need significant time and resources to adequately review the evidence, to conduct investigations that may arise from the new information, and presumably to file motions contending that they are entitled to more information from the CIA program.
Parties Dispute When Learned Counsel Has to be in Court
After Bormann’s untimely fall, her team filed an emergency motion to cancel the hearings before the trip from Andrews; the government opposed the motion. Pohl decided he would need to have oral arguments on the issue at the Guantanamo Bay courtroom. This meant that the judge and his staff, prosecutors, the five defense teams, one witness, victim family members, journalists and NGO observers travelled for the session. When court began Wednesday, it became clear that the parties could not wait a few days for Bormann to join them. She had flown back to Chicago, where her doctor told her she would need surgery and could not travel either before or for two weeks after the operation.
“As our defense team is currently comprised of our present members, we are not providing Mr. bin Attash capitally qualified counsel, which means we are not providing effective representation,” Edwin Perry, one of the civilian lawyer’s on Bormann’s team, argued to Pohl.
Perry told Pohl that the judge should not do as the prosecution suggested was possible – to ask bin Attash if he wanted to temporarily waive the presence of learned counsel for the session. Bin Attash has been trying to fire Bormann and another civilian attorney, Michael Schwartz, for about a year, but Pohl has not seen good cause to sever the attorney-client relationship.
“He's been consistent that he wants learned counsel,” Perry said. “He requested substitution, but he always requested counsel. He never requested to go pro se. “
Prosecutor Ed Ryan told Pohl that the judge could, in fact, move forward with “this little sliver in the course of a multiyear case,” suggesting that the judge could hear motions that pertained more to the other defendants, or give Bormann an opportunity to argue next time if the team was not satisfied with how the non-lead attorneys presented in court.
Pohl eventually sided with Perry on the issue, agreeing to postpone oral arguments until the late March session, but it was clear he and the defense attorney were not on the same page. Though Bormann is expected to recover well before the next session, Pohl said he wanted the other attorneys prepared to argue without her.
“Unless there is a death-penalty-specific issue, why wouldn't having two months to prepare for appearing without her give you enough time to argue the legal motions at this stage?” Pohl asked Perry. “Are you just saying, 'Well, because she's learned counsel, we're not competent to do anything without her?'"
The judge said Perry might be selling himself short. But Perry said that the requirements of the Military Commissions Act and the 6th Amendment were clear, and that beyond that “it's hard to parse what could not be critical in a death case.” He said a learned counsel needs to be in the courtroom.
“Regardless of who initially drafts that pleading or regardless of who does the oral argument, she is present and all of our counsel will always confer with her prior to sitting down and waiving the rest of their time,” Perry said.
Pohl sided with the government on the dispute on which Ryan placed greater emphasis – that the parties should move forward with the deposition of 84-year-old Lee Hanson, who lost his son, daughter-in-law and two-year-old granddaughter when United 175 crashed into the World Trade Center.
Prosecutors want to preserve the testimony of aging family members who could testify at a possible sentencing phase but who may not make it to trial for health reasons. Pohl ruled last year that Hanson would need to testify in person at Guantanamo Bay to give the defendants a chance to attend because the government might use his testimony as a fact witness during the guilt phase. Hanson was on the phone with his son, Peter, when it crashed into the building.
“I can't ask that good man to make that trip again,” Ryan said. “He has given enough.”
Pohl said that the deposition was to preserve the testimony, not necessarily to admit it, and so the bin Attash team could make objections to its admissibility later.
Also last year, Pohl rejected a motion by a consortium of media organizations to open the deposition to the public. Hanson testified in closed court for about two hours on Friday morning; the transcript is sealed. Attorneys could not comment on the content of the testimony, other than to say it was an emotional day in court and that none the defendants chose to attend.
Related: View our feature article from last fall, “Pretrial of the Century,” an in-depth feature account of the Sept. 11 case.