Photo of the courtroom used for the Sept. 11 case provided by Joint Task Force Guantanamo Public Affairs.
Guantanamo Naval Base, Cuba – As the new guy in town, Army Brig. Gen. Jackie L. Thompson Jr. may not be experiencing a sense of déjà vu with the latest round of stalled proceedings in the Sept. 11 case on Guantanamo Bay. But the words out of chief defense counsel’s mouth echo his predecessor’s when confronted with the possibility that one of the five defendants’ lead lawyers – the “learned counsel” experienced in handling death penalty trials – might have to depart the case. Thompson told the two reporters who travelled to the U.S. Naval Base for the latest pretrial hearing that the prospect of significant delays in the case could have been avoided if the Pentagon funded two learned counsel for each team.
“This would not be an issue,” said Thompson. “We would be moving forward.”
The law requires any detainee facing a possible death sentence in a military commission to be represented by a lawyer qualified to lead capital defenses. That lawyer for Walid bin Attash, Cheryl Bormann, has sought to withdraw from the case over an internal investigation into her “performance and conduct” by the Military Commissions Defense Organization, which Thompson has led since the start of the year.
The judge, Air Force Col. Matthew McCall, had intended to use this three-week session to plow through more than 30 motions that have piled up in the case. On Feb. 28, however, Bormann filed a motion seeking to have the hearings cancelled or abated on the grounds that the investigation “created a profound conflict.” McCall declined to do so, and the parties flew to Guantanamo Bay on March 5.
On March 7, McCall had an ex parte, or private, session with Bormann, during which she made an oral motion to withdraw, according to a recent order by McCall in which he deferred ruling on her request. He also met separately with members of her team, once with bin Attash present. He set a March 14 deadline for the other defense teams and the prosecution to file response’s to Bormann’s withdrawal motion.
McCall had initially planned to hear oral arguments on pending motions that were not filed by the bin Attash team but apparently changed his mind, at least for now. He indicated more recently that proceedings will resume March 21, at the start of the third week. In the interim, he plans on holding ex parte sessions with at least three defense teams who have requested them.
Thompson declined to comment on the specifics of the Bormann investigation, which he portrayed as largely closed from a fact-finding view. He said, however, that none of the other lawyers on the bin Attash team qualify as learned counsel. If McCall grants Bormann’s request, the case could be stalled for an undetermined period of time as Thompson seeks a replacement and, once appointed, for that lawyer to become adequately familiar with the case’s massive record. McCall could also decide to sever bin Attash from the case to keep proceedings moving against the remaining four defendants.
Thompson’s predecessor, Marine Brig. Gen. John Baker, who retired in December, made multiple requests for second learned counsel for capital defendants to the “convening authority,” the Pentagon office that manages the military commissions system. Thompson said the latest denial came April 30, 2021, and that he intends to renew the request. He noted that the learned counsel qualification comes with age and experience, and that any number of health concerns – a broken hip, stroke, heart attack or Covid – could jeopardize progress at any time.
“What if something happens to my other learned counsel?” Thompson said.
For now, Thompson has initiated a job search for a “learned conflict counsel” to advise bin Attash on this situation. He had not begun to search for a potential replacement for Bormann.
Judge McCall presided over his first session last September and is himself still getting up to speed on the case. At that hearing, McCall told the parties that at least a year of pretrial proceedings remained before a trial could start. He held his second session in November but cancelled the planned two-week hearing in January due to the Omicron spike.
Prior to the pandemic, the case had seen several months' progress in its most critical pretrial phase to date – defense efforts to suppress incriminating statements their clients made to FBI interrogators on Guantanamo Bay in early 2007, about four months after they were transferred from CIA black sites. Lawyers claim that these statements are tainted by past torture by the CIA, as well as by the coordination between the FBI and the CIA on interrogations. Prosecutors contend the January 2007 statements were made voluntarily. They have said repeatedly that the statements are among the most critical evidence in the case.
Witness testimony began in September 2019, mostly from current and former FBI agents who conducted the 9/11 investigation. In January 2020, Dr. James Mitchell, the contract psychologist who designed the CIA’s “enhanced interrogation program," testified for nearly two weeks about the abusive techniques used on the detainees in CIA custody.
The case’s unusual level of momentum was halted in February 2020, however, when the longtime lead lawyer for defendant Ramzi bin al Shibh, James Harrington, said he had to withdraw from his learned counsel role for health reasons. The judge at the time, Air Force Col. Shane Cohen – the third on the case – granted the request, though he had Harrington remain on the team as a replacement was found and during the subsequent transitional period. Cohen stepped down from the case for unspecified personal reasons the next month. That left the case with Army Col. Douglas Watkins, at the time the chief judge of the commissions, who declined to hold hearings as the pandemic raged.
In the summer of 2020, David Bruck, who replaced Harrington, said in a transition plan filed with the court that he would need 30 months to develop a relationship with bin al Shibh, familiarize himself with the pretrial litigation and team strategy, and prepare for trial. Pandemic-induced delays did not give Bruck quite that much time, but he and his team have participated in proceedings since their resumption last September, in the week before the 20th anniversary of the Sept. 11 attacks.
Since taking command of the case in that session, McCall has moved cautiously, preferring to wrestle with long-pending and newer discovery motions rather than dive back into witness testimony for the suppression hearings.
While the details are not public, the investigation into Bormann’s conduct appears to be of an employment job-performance variety as opposed to the types of criminal or security probes that have caused other delays in the case. Most famously, Harrington discovered in April 2014 that the FBI had placed an informant on his team, signaling an apparent federal criminal investigation. That delayed substantive progress in proceedings for close to 18 months until prosecutors from the Justice Department convinced the first judge on the case, Army Col. James Pohl, that the investigation was closed and that no charges would be filed against Harrington or other team members. Since then, potential mishandling of the case’s unprecedented volume of classified information has led to administrative investigations that have prompted defense lawyers to intermittently claim that they were operating under conflicts of interest.
In another odd episode, FBI agents interrogated a former paralegal for bin Attash in Fort Hood, Texas, while the paralegal was transitioning to a new assignment for the Army in South Korea at the tail end of 2018. Most of the FBI’s questions sought information on bin Attash and his team, but they also asked about other teams, according to an affidavit filed by the paralegal. Bormann and lawyers from other teams claimed that the case should be halted until they learned more about the investigation. The second judge on the case, Marine Col. Keith Parrella, disagreed, saying that he was convinced by a government filing that no current members from any team were under investigation.
The health and other personal issues of the learned counsel have complicated past proceedings. Prior to the January 2017 session, Bormann suffered a wrist and arm injury that required surgery. She flew back to her home in Chicago from Washington, D.C., while the rest of the participants travelled to Guantanamo Bay. Judge Pohl declined to hear oral arguments on most pending motions as a result of her absence from that session. Last September, during his first session, McCall decided to hold hearings without Walter Ruiz, the learned counsel for Mustafa al Hawsawi, who departed Guantanamo Bay for personal reasons. McCall limited the amount of motions addressed and allowed Ruiz’s team the opportunity to conduct its voir dire of the new judge at a later time. Ruiz returned for McCall’s second session in November.
About the author: John Ryan (email@example.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.