Confusing Commission Rules Continue to Hamper 9/11 Case

This is a cross-post from The Huffington Post.

After more than a week of confusion at the Guantanamo military commissions over the representation of Walid bin Attash, one of the five accused plotters of the September 11 attacks, the defendant clarified Wednesday morning that he doesn’t want to represent himself, he just wants to fire one of the lawyers representing him. But once again, no one was sure what the commission rules are for deciding that.

Although the regulations suggest the Office of Military Commissions’ Chief Defense Counsel decides whether a particular lawyer is removed from a case, Judge James Pohl, presiding over the 9/11 case since its inception, made clear he doesn’t agree with the regulations. Based on case law developed in other (non-military commission) cases, he believes he’s the final arbiter on this issue. He said the defendant should explain to him directly why he needs a new lawyer.

The government’s prosecutors in the case at first agreed with Pohl and objected to Bormann’s removal from the case. But Major Michael Schwartz, the military lawyer assigned to represent bin Attash and with whom bin Attash apparently has no problem, told Judge Pohl he’d assumed the military commission regulations controlled, meaning the matter was in the hands of the chief defense counsel — who’s also Schwartz’s boss. If that’s not the case, he needs time to consider that and discuss it with his client (and his boss).

The Manual for Military Commissions is confusing in this regard. On their face, the regulations do suggest it’s the Chief Defense Counsel, not the judge, who has the authority to decide who will represent the accused.

In particular, the regulations read:

After an attorney-client relationship has been formed between the accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail such counsel [which is the Chief Defense Counsel] may excuse or change such counsel only:

(i) Upon request of the accused or application for withdrawal by such counsel; or
(ii) For other good cause shown on the record.

Judge Pohl, however, insists that cannot be the last word. It’s the judge’s role, at least usually, to determine whether the defendant has shown “good cause” to fire his lawyer. And he’s not giving up that role, he said.

The hearing ensued in confusion, as the attorneys and judge argued over what the law is, who’s required to explain it to the defendant and how bin Attash can inform the judge why he wants a new lawyer, since his current lawyers insist that information is privileged. Bormann said repeatedly that if bin Attash disclosed his reasons to the court, it would compromise his case, and that because the prosecution is seeking the death penalty, the rules protecting that information are particularly strict.

Underlying the entire discussion was a sense that no one in the room knows all the relevant facts. Bormann has filed several sets of legal papers privately with the judge, in what’s known as an ex parte submission. Major Schwartz, bin Attash’s military lawyer, also told the court repeatedly that neither he nor his client has all the relevant facts needed to make an informed decision about representation. He asked the court to adjourn until December so they could all learn and discuss them.

Instead, the judge ruled that he’ll hold a secret (ex parte) hearing, on the record but with only himself, bin Attash and his current lawyers, so he can hear from bin Attash personally why he has a problem with Bormann and can determine whether that constitutes “good cause” to remove her from the case.

The next public hearing is scheduled for 9 a.m. Thursday morning.


Published on October 29, 2015


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