Sept. 11 Defendant May Not Choose Own Counsel, Court Rules

A view of the defense side of the courtroom where the Sept. 11 defendants are being tried at Guantanamo Bay. (Photo courtesy of Joint Task Force Guantanamo, Public Affairs.)

Guantanamo Naval Base, Cuba – The military judge presiding over the Sept. 11 case ruled on Wednesday that accused plotter Walid bin Attash must either represent himself or accept the civilian lawyers appointed for him by the Military Commission – dashing the defendant's hopes  to select the attorneys who will try to save his life. Army Col. James Pohl's ultimatum came after a day of arguments over Bin Attash's distrust of his current civilian counsel, which ended shortly before 2:30.

Pohl asked Bin Attash to consider his choice before hearings resume Thursday.

The judge acknowledged that the issue has been “festering” since October, when Bin Attash expressed an interest in representing himself. He later decided he wanted to have removed from the case both his lead lawyer, capital defender Cheryl Bormann, and a second civilian lawyer, Michael Schwartz. Bormann fulfills for Bin Attash the role of "learned counsel," the mandated lawyer experienced in death penalty representation who counsels the defendant alongside his appointed military counsel.

Pohl ruled in February that the legal standard of “good cause” did not exist to remove the attorneys, who have represented Bin Attash since before his May 2012 arraignment. But Bin Attash renewed his requests, and the government claimed in written motions that he had the right to excuse certain members of his team. In court Wednesday, prosecutors went even further, claiming the case could move forward without a learned counsel representing the defendant.

Because he cannot afford his own lawyers, Bin Attash is in a similar position to indigent defendants in the U.S. when it comes to his representation. Self-representation is allowed for in the commissions system and is established under the 1975 U.S. Supreme Court case of Faretta v. California. The challenges of doing so in this case are heightened because defendants cannot access classified information and have restrictive conditions of confinement. Any defendant asserting his pro se right in the commission would receive “standby counsel” to assist him.

At the start of proceedings Wednesday morning, Bin Attash became angered by Bormann’s presence at the defense table. Bormann told Pohl in February – in her own failed attempted to withdraw from the case – that her client had lost faith in her over government interferences into the attorney-client relationship and her inability to get him a phone call with family members, even after his mother died. She requested on Wednesday that she be allowed to sit at the back of the courtroom with other attorneys on her team, which Pohl permitted.

“I might lose control over myself,” Walid bin Atttash told the judge in translated Arabic. “I cannot bear their behaviors.”

Bin Attash is one of five defendants, including accused plot mastermind Khalid Sheikh Mohammed, facing the death penalty for alleged roles in planning and financing the Sept. 11 terrorist attacks. Court staff, prosecutors and defense teams arrived at Guantanamo Bay on Saturday to resume working their way through a long list of pending motions; a trial date is still not set in the case. A late filing by the Bin Attash team led Pohl to postpone the start of the first open session from Monday until Wednesday. The sealed document was the subject of a brief closed session held Monday morning

The Chief Defense Counsel of the military commissions system, Marine Brig. Gen. John Baker, who does not represent any of the defendants, filed an amicus brief on the Bin Attash dispute and was the first to present arguments Wednesday. Under commission rules, a death penalty defendant is entitled to government-paid learned counsel experienced in capital cases as well as a military defense lawyer. Given the size and complexity of the case, the five defense teams have received additional civilian and military lawyers from Baker’s office. [Related: Read our "Lawyer Limelight" profile of Brig. Gen. John Baker.]

Baker said that Bin Attash had to choose between two options – representing himself or accepting his appointed attorneys – because a defendant has no right “to ineffective counsel.” Removing attorneys who had been on such a challenging case for years would leave the remaining defense team ineffective, Baker said.

He argued that commission rules and relevant case law should lead Pohl to entertain Bin Attash’s request but require him to show “good cause” to sever the relationship with his attorneys, which the judge already had found absent. Baker said it was his decision as Chief Defense Counsel to determine which and how many lawyers are assigned to the teams, after which each team’s lead lawyer was then responsible for strategic decisions, including attorney roles.

In written motions, the government had focused on Bin Attash’s right to excuse Schwartz, who is not his lead civilian lawyer (the learned counsel), and therefore not "statutorily required" by the Military Commissions Act. A former Air Force major, Schwartz had served as Bin Attash's military counsel but became a civilian late last year in order to stay on the case, as he was scheduled to rotate to another military assignment.

But in court Wednesday, prosecutor Ed Ryan argued that, in fact, Bin Attash could excuse both Schwartz and Bormann, and that a replacement learned counsel was not required. That would leave the defendant with his detailed military counsel, Army Major Matthew Seeger, and another civilian, Edwin Perry. (Bin Attash told Pohl he wasn’t sure how he felt about these attorneys.)

Ryan told Pohl that a defendant could waive his right to learned counsel and should only have to establish good cause if he wanted a replacement attorney for that role. At that point in oral arguments, it was not clear if Bin Attash would insist on replacements for either Schwartz, Bormann or both.

Ryan said it did not make sense to require a defendant to accept his entire appointed team if he wanted to keep any lawyers at all – which might push a defendant to choose self-representation over a good legal team that he mostly liked, merely because he disliked one of the attorneys.

But Perry, the more recent civilian addition to Bin Attash’s team, told Pohl that allowing Bin Attash a third choice – excusing certain members of his team, keeping others – did not have precedent in federal or state courts.

“Your Honor would be creating a system that has never existed before,” Perry said.

After a lunch break, Pohl ruled that he was bound by a 2015 decision from the U.S. Court of Appeals for the D.C. Circuit, which has appellate jurisdiction over the commissions. In U.S. v. Bostick, the appellate court upheld a trial judge’s decision to reject a defendant’s request to have his lead lawyer removed, after the assistant defense counsel stated that the removal would render the defense ineffective.

Pohl added that the Bostick defendant was not seeking a replacement of counsel, only removal, which the judge said would guide him to require a showing of good cause even if Bin Attash did not want replacements for Bormann and Schwartz.

As it turned out, Bin Attash told the judge in a brief colloquy that he wanted replacements if he could fire the two attorneys, though he added that he would be comfortable with proceedings continuing until new attorneys were assigned. Pohl ended the day reiterating that he found no good cause to remove the attorneys. Bin Attash then asked to put something on the record, but he was cut off – at least from the viewing gallery, to which the audio feed was cut.

This round of hearings is scheduled to last this week and all of next week.