Lead Defense Lawyer in Sept. 11 Case Asks To Leave, Creating Uncertainty for Path to Trial

Defense attorney James Harrington.

Guantanamo Naval Base, Cuba – One of the lead defense lawyers in the Sept. 11 military commission has asked to leave the case, throwing the long-running proceedings into yet another phase of turbulence and uncertainty.

James Harrington, the lawyer for Ramzi bin al Shibh, made his oral motion Tuesday morning, citing both his personal health and problems with the attorney-client relationship that he did not discuss in open court.

The judge, Air Force Col. Shane Cohen, asked Harrington to file a written motion within 48 hours providing more details about his reasons for wanting to leave the case; he asked the prosecution to file its response 24 hours thereafter.

Ed Ryan, one of the prosecutors, argued that showing “good cause” to leave a case is “a significant hurdle.” The prosecution was “likely to oppose strongly” Harrington’s request to depart the commission, Ryan said. The case has been in pretrial litigation since the May 2012 arraignment. Cohen has set a trial date for January 2021.

Harrington, of Buffalo-based Harrington & Mahoney, is his team’s “learned counsel” – meaning he is qualified to handle death penalty cases – which each defendant facing a possible death sentence is required to be provided under the 2009 Military Commissions Act that established this court system.

Cohen told that courtroom that – if he granted the motion – it might take several months for a replacement learned counsel to get up to speed on the massive record generated by the case’s labyrinthine eight-year history. He  added that such a decision might lead him to sever bin al Shibh from the case, to enable proceedings against the four co-defendants to move forward. Cohen acknowledged that the other four defense teams would want to be heard on the severance issue. He asked the defense teams to file motions stating their positions on severance by Monday.

“This is the time we need to think about individualized justice,” Cohen said.

The bombshell twist prevented the resumption of pivotal suppression hearings that began late last summer. James Connell, the lead lawyer for Ammar al Baluchi, was expected to call former FBI Special Agent James Fitzsimmons as a witness for his motion to suppress incriminating statements that al Baluchi made to FBI agents at Guantanamo Bay in January 2007.

All five defense teams are seeking to suppress the 2007 statements, which the government claims were voluntarily given to the FBI. Lawyers claim that the statements are tainted by past torture at CIA black sites, as well as by coordination between the FBI and the CIA on interrogations between 2002 and 2007. Fitzsimmons interrogated al Baluchi after he was captured by Pakistani authorities in 2003 and before his rendition to CIA black sites.

The suppression hearings, still midstream at best, have been a slog. James Mitchell, the former CIA psychologist who developed the “enhanced interrogation” program used at the black sites, testified for eight straight days at the last pretrial session, in late January. All five defense teams grilled the defiant onetime contractor about CIA interrogators' use of waterboarding, walling, sleep deprivation and other techniques. Connell is well ahead of the other defense teams in calling witnesses specific to his motion to suppress. [Read recent coverage.]

The suppression proceedings nevertheless reflected notable progress in one of the most critical pretrial phases of the case. The uncertainty created by Harrington’s withdrawal motion led Cohen to postpone Fitzsimmons' testimony. The judge could reject Harrington’s request to leave the case – allowing proceedings to resume next week. However, already Fitzsimmons had a scheduling conflict that limited his ability to testify beyond this week.

Marine Brig. Gen. John Baker, who heads the Military Commissions Defense Organization, has long sought a second learned counsel for each defense team – both to help with the massive workload of the case and to avoid delays if a learned counsel had to leave the case or miss a hearing. That possibility left the realm of the theoretical in January 2017 when Walid bin Attash’s lead lawyer, Cheryl Bormann, broke her arm two days before a flight to Guantanamo Bay. Bormann had to fly home to Chicago to undergo surgery. The judge at the time, Army Col. James Pohl, eventually decided he could not hear oral arguments on pending motions without the learned counsel present, though he did take the deposition of a victim family member who had flown down for the proceedings. (Bormann was able to attend the next scheduled hearing in 2017.)

Since becoming Chief Defense Counsel in 2015, Baker has made several requests to the military commission’s “convening authority” – the Pentagon official who oversees resourcing and other matters for the proceedings – for second learned counsels.

Last September, the learned counsel for Khalid Shaikh Mohmmad, David Nevin, stepped down from the learned counsel role (Nevin remains on the team.). That did not cause a delay because another longtime team member, Gary Sowards, has 45 death penalty cases under his belt and stepped into the learned role.

Harrington, 75, has represented bin al Shibh since early 2012, before he was arraigned. For much of the case, bin al Shibh has complained that the guard force at the detention facility on Guantanamo Bay is subjecting him to “noises and vibrations” as a continuation of the torture from the CIA black sites. More recently, bin al Shibh has complained before Cohen that the mistreatment now includes pain being directed at parts of his body by some invisible force. The government has denied that bin al Shibh is being harassed. Harrington has said in court on many occasions, as well as to reporters, that bin al Shibh’s continued suffering has frayed the attorney-client relationship.

Over the past 18 months, Harrington has had two knee surgeries – including a knee replacement – and a minor heart surgery. Tuesday afternoon, Harrington met briefly with the two reporters who travelled for this two-week session, which is the 41st of the pretrial phase. Harrington said that his doctor recently recommended that continuing with the case was not good for his heart condition.

Harrington also confirmed that that there is no learned counsel immediately available to take over for him.

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.