Lead Lawyer’s Potential Exit From 9/11 Case Sparks Emotional Arguments

Guantanamo Naval Base, Cuba – James Harrington, the 75-year-old fixture of the Sept. 11 case, asked a military judge on Tuesday to grant his request to leave the case for health reasons, saying he could not fully participate in the looming three-week March session that would require him to examine multiple witnesses.

“My trial days are over,” Harrington said to Air Force Col. Shane Cohen.

Harrington, of Buffalo-based Harrington & Mahoney, has represented Ramzi bin al Shibh since before the May 2012 arraignment. He said he is sad and disappointed that he can no longer “fight through things” as he has his entire career – including the period of 2018 to 2019 when he did not miss any court hearings while enduring two knee surgeries, a heart surgery, and the recuperations.

Departing the case now is in the best interests of his client, the Sept. 11 case and the prosecution team – even if the government did not currently view it that way, he argued in defense of his motion to withdraw. Harrington is bin al Shibh’s “learned counsel” experienced in capital cases, which each defendant facing a possible death sentence is required to have in the military commissions system.

During a January checkup, Harrington's doctor told him he should leave the case, he said Tuesday.

Prosecutor Ed Ryan urged Cohen not to grant Harrington’s request until a replacement is ready to assume the learned counsel role, claiming that Harrington did not face an immediate health emergency. Of primary importance to the government, Ryan argued to the judge, was that he maintain his planned January 2021 trial date – invoking the memory of Lee Hanson, who lost his son, daughter-in-law and granddaughter on Sept. 11, 2001. Hanson travelled to Guantanamo Bay three years ago and gave a deposition that would preserve his testimony for trial and sentencing; he died in 2018.

“We have many, many Lee Hansons in our midst,” Ryan said.

He argued that bin al Shibh should not be severed from the five-defendant death penalty case as a middle road for Harrington's departure.

“And they must be tried on schedule,” Ryan said.

Harrington made an oral motion to depart the case one week ago, gutting plans for a two-week session that was expected to start with the testimony of former FBI Special Agent James Fitzsimmons, who was involved in early overseas interrogations of some of the defendants. Cohen ordered Harrington and the prosecution to file written motions on the excusal motion, and later set Tuesday for oral arguments.

The defense teams are currently seeking to suppress confessions their clients made to FBI agents in 2007, after they arrived at Guantanamo Bay from CIA black sites. The suppression hearings, which began last September, have involved grueling examinations of FBI and CIA witnesses. The slow pace of the proceedings led defense attorneys to question the likelihood of a January 2021 trial even before Harrington sought to withdraw from the case.

The grind of long days of witness testimony helped convince Harrington that he would not be able to withstand the demand of the upcoming proceedings and trial, Harrington explained to Cohen on Tuesday.

Harrington occasionally likes to pepper his oral arguments with humor, and began his arguments Tuesday morning by telling the judge that he was “not about to drop dead” in front of him. But he quickly took a serious tone and expressed anger with parts of a pleading opposing his withdrawal filed by the government that he described as “petty” and “vindictive.” That document, which is not publicly available but was described in court, provides information on how much money Harrington has earned on the case over the past eight years.

Harrington argued to Cohen that he doubted anybody on the prosecution side of the courtroom had ever run a law business. His hourly rate as a contract defense lawyer representing bin al Shibh is less than half of what his firm charges his paying clients in the Buffalo area, Harrington said. He also said that the money he receives funds a business that pays for 11 employees, health and retirement benefits, computer and phone equipment, legal dues and subscriptions, IT services and many other expenses.

Harrington noted that he had never complained about how his long-time commitment to the Sept. 11 case affected his practice, nor did his law partner.

“Even though he’s carrying me,” Harrington explained of the impact on his law firm's finances.

Harrington then read the names of eight lawyers who have served as the U.S. Attorney for the Western District of New York – four Democrats and four Republications – and invited the judge and the prosecution to ask them about his reputation. He said each was sure to describe him as an irreverent, dry-witted curmudgeon as well as a prepared and skilled trial lawyer – who above all else can be trusted completely at his word.

Harrington said he’s had “a wonderful career,” which included the honor of standing before Cohen for the hearing this week.

Ryan said the prosecution didn’t care who was sitting on the other side of the courtroom for bin al Shibh. He argued that Vivian Hernandez, a civilian lawyer who joined the bin al Shibh team last year, was qualified to serve as learned counsel. Hernandez previously worked as an assistant capital defender in Northern Virginia; she received her law degree in 2012.

Harrington’s written pleading seeking his excusal detailed efforts that he and the Chief Defense Counsel, Marine Brig. Gen. John Baker, undertook in recent years to find a second learned counsel to whom Harrington could begin transitioning the lead role. Baker has sought funding for second learned counsel slots for all five defendants; each request has been denied by the Pentagon officials overseeing the commissions system.

Ryan argued on Tuesday that Harrington’s team now has seven lawyers, and that parts of the past two year years could have been used preparing one of them – whether Hernandez or another – to assume the learned counsel role.

In his concluding remarks, Harrington called that argument “preposterous.”

“It makes a mockery of having a learned counsel at all,” Harrington said. (He earlier praised Hernandez but said she was not ready to lead the team.)

Harrington told Cohen that he would stay on the case as a “resource counsel” and assist a new learned counsel in getting up to speed on the proceedings; the judge acknowledged last week that would take several months. Harrington said he would be willing to travel regularly from Buffalo to Rosslyn, Va., where the Military Commissions Defense Organization has its stateside offices.

Harrington argued the best way forward was to sever bin al Shibh from the case, so that it could move forward on a slower track. Otherwise, Harrington said, the new lead lawyer will be put in a position of asking for more time to prepare for the scheduled hearings.

Harrington’s motion to depart the case also cites problems with his relationship with bin al Shibh. Because those issues involve privileged attorney-client information, Cohen scheduled an ex parte session with the bin al Shibh team for Tuesday afternoon.

In his oral arguments, Ryan told Cohen that the defendants have a right to a learned counsel, but not to their choice of a specific lawyer for that role.

About the author: John Ryan (john@lawdragon.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.