Defense lawyer Alka Pradhan said parties to the 9/11 case "worked very hard" on plea negotiations.
Guantanamo Naval Base, Cuba – Normally, a military judge’s decision to release a lead defense lawyer from the Sept. 11 case would have marked the most important turn in any hearing for a pretrial phase that has stretched on for nearly a decade.
Air Force Col. Matthew McCall did just that on Wednesday by granting Cheryl Bormann’s request to withdraw over a potential conflict created by an internal investigation into her “performance and conduct” as learned counsel for Walid bin Attash, one of the five defendants charged with planning or facilitating the 9/11 attacks.
McCall ordered the chief defense counsel to “expeditiously” find Bormann’s replacement and to update him every two weeks as another three-week session, scheduled to begin May 9, sits on the horizon.
But it’s unclear whether McCall will need that hearing to continue working through the dozens of pending pretrial motions. As turmoil on the bin Attash team delayed the start of proceedings this month, prosecutors made the surprise move to suggest to the defense teams that they use their time on Guantanamo Bay to explore agreements that would remove the death penalty as a sentencing option in exchange for guilty pleas.
For now, the hope of bringing a resolution to the epic case remains alive.
“All parties worked very hard during these three weeks to advance negotiations,” Alka Pradhan, one of the civilian lawyers for Ammar al Baluchi, told reporters at Camp Justice Friday afternoon.
Both Pradhan and al Baluchi’s lead lawyer, James Connell, declined to comment on the substance of the negotiations, as did other lawyers who participated in the talks. Connell said, however, that the negotiations would continue. The other defendants are Khalid Shaikh Mohammad, who is al Baluchi’s uncle and the accused mastermind of the attacks, Ramzi bin al Shibh and Mustafa al Hawsawi.
The opening of plea negotiations was first reported by Lawdragon and the New York Times on March 15.
Any plea agreements will need approval by the convening authority, the Pentagon official who oversees the military commissions. But a deal of this magnitude – including provisions for conditions and locations of confinement, as well as sentencing ranges – will require coordination with and buy-in from multiple agencies of the Biden administration.
McCall granted a joint request by defense teams and the prosecution to postpone hearings based on the newly launched plea talks on March 10. He granted a second request on March 17 after hearing from the prosecution that “significant enough progress” had been made in the first full week of negotiations to continue. He said that “the interests of justice are served by granting the continuances.” If negotiations progress to May without completed agreements, McCall might be inclined to postpone that session, as well.
If talks fail, McCall will face a quandary of how to move forward in light of Bormann’s departure. The law requires that any defendant facing a possible death sentence in a military commission be represented by a learned counsel with experience in capital defenses. The chief defense counsel, Army Brig. Gen. Jackie L. Thompson Jr., said Friday that he was “optimistic that we will identify and bring on learned counsel in the near future.”
However, that lawyer will have to receive security clearances, a process that can take months. The new learned counsel also may request delays to become familiar with the case’s record.
Prior to the start of this session, on March 6, Thompson filed an ex parte pleading in which he asked McCall to abate the proceedings until he could find an “independent learned counsel” to advise bin Attash on the potential conflict created by the investigation into Bormann by his organization, the Military Commissions Defense Organization. Thompson also asked McCall to find “good cause” to remove Bormann from the case because he felt the investigation created a conflict.
McCall instead chose to meet privately with Bormann in an ex parte session on March 7 and later with members of her team and bin Attash. McCall also received ex parte filings from Bormann. In his Wednesday ruling, McCall said he learned from Bormann that she had received a redacted version of the investigation report “and that she had not been interviewed or offered an opportunity to respond to the investigation.” On March 8, he released Bormann from the March session but did not rule on her request to permanently withdraw until first receiving input from the prosecution and any other defense teams that wanted to weigh in.
In a March 9 filing, lawyers for Mohammad strenuously objected to moving forward without Bormann. That team, led by Gary Sowards, urged McCall to “defer further hearings and oral argument on any and all motions” until he either denied Bormann’s request or a replacement learned counsel was found for the bin Attash team.
“[T]he Commission should not establish a new precedent in these proceedings that a capital defendant’s right to the presence of qualified counsel may be placed on hold to accommodate a hearing schedule in the face of a conflict-of-interest investigation and/or a motion to withdraw,” the lawyers argued.
The government’s position, filed March 14, is not yet publicly available. However, lawyers have said prosecutors contend that William Montross, a member of the bin Attash team since late 2017, meets the learned counsel requirement. Montross previously worked at the Southern Center for Human Rights. Thompson told reporters in the first week of the hearing that Montross did not qualify as a learned counsel.
Arguments over whether McCall should hold oral arguments without Bormann present were tabled by the opening of plea talks.
In his 15-page ruling on Wednesday, McCall said that he made “no findings regarding the adequacy” of the investigation into Bormann “or of the veracity of the allegations.” However, he said “it is clear that the existence of the investigation and the nature of the underlying allegations have caused irreparable damage to the ability of the bin Attash team to continue to function effectively” in “its current configuration.”
McCall said that bin Attash’s remaining lawyers who have appeared on the record in court, including Montross, Edwin Perry, Anisha Gupta and Air Force Maj. Jay Peer, will continue to represent him.
McCall said he did not need to appoint an independent learned counsel to advise bin Attash on the situation because he agreed with Bormann and Thompson that a potential conflict existed warranting her removal from the case.
Thompson said on Friday that his initial search for an independent learned counsel “identified several qualified and interested applicants who may also be willing to serve as learned counsel in a permanent capacity.”
At the conclusion of his ruling, McCall ordered that the pleadings and transcripts associated with the Bormann investigation and her departure from the case remain sealed. This session did not have any open court days during the three weeks.
About the author: John Ryan (firstname.lastname@example.org) 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.