9/11 Military Commission Stalls Again Over Defense Representation Rights

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9/11 Military Commission Stalls Again Over Defense Representation Rights

This April 17, 2014 sketch by court artist Janet Hamlin depicts Judge Army Col. James Pohl as he halts the Sept. 11 pretrial hearing at the Guantanamo Bay U.S. Naval Base in Cuba. (Image: AP File)

It was a typical Monday morning at the Guantanamo military commissions. Within the first 15 minutes, the judge had to adjourn the pre-trial hearing in the case of the five defendants accused of the September 11, 2001 terrorist attacks, this time because one of the defendants had asked a question. And no one knew the answer.

As Army Col. James Pohl, the judge presiding over the case, went through his routine questioning of the accused to ensure they understood their rights to be present for at least the unclassified portions of the hearings in their military commission case, Walid bin Attash, a Yemeni in his mid-30s alleged to have trained some of the hijackers, piped up.

"What if I want to represent myself?" He asked in Arabic, as his lawyers, seemingly baffled, looked on. "What is the procedure for that?"

It wasn't clear at first why bin Attash might now want to represent himself. His lead lawyer, Cheryl Bormann, a death penalty specialist from Chicago who's gone to the trouble of covering herself in a hijab in court to earn her client's trust, said she had no idea. She asked the judge to adjourn the hearing so she could speak to her client.

An hour later, she told the court her client no longer trusted her or her co-counsel because he couldn't be sure there wasn't a CIA agent on his defense team, or the government wasn't otherwise listening to what were supposed to be private conversations. These concerns might seem outlandish, if not for the actual attempted defense team infiltration by the FBI and CIA monitoring of supposedly confidential communications earlier in the course of the pre-trial hearings.

"The conditions here are like the CIA black sites," said bin Attash through a translator at one point. Bormann told the court her client now wants to represent himself because he can't trust anyone associated with the commissions, and he wants to know what's the procedure for doing that. Bormann said she couldn't tell him.

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In federal court, a client who represents himself can access a law library, past cases, and confer with outside lawyers, Bormann told the Guantanamo court Monday morning. "There's none of that in military commissions." The 9/11 defendants are held under extreme security measures in Guantanamo's Camp 7 and are not permitted to access the internet, call their lawyers or obtain or review the sorts of materials available to most federal court defendants.

"I can't possibly advise him of his rights because I don't know what they are," Bormann said. "This is like no other court. The government's taken the position that the Sixth Amendment to the US Constitution doesn't apply."

In fact, the commissions have never ruled which aspects of the Constitution do apply at Guantanamo, although the U.S. Supreme Court has said that at least some parts of it do.

After further discussion it became clear that neither Judge Pohl nor the prosecutors knew how exactly bin Attash could defend himself in the military commissions, given the restrictions on him at the Guantanamo prison, although the lead prosecutor, Brigadier General Mark Martins, insisted those restrictions do not pose a problem. The judge adjourned the hearing until Tuesday morning, telling the prosecutors to call up the procedures the commissions used in 2008, when several defendants asked to represent themselves at that time. (They later changed their minds.)

Judge Pohl did not mention that the law governing military commissions has changed since then, when President Obama signed the Military Commissions Act of 2009. That new law brought in new procedural rules that may affect a detainee's rights to self-representation, and to confidential communications.

At this point, of course, these sort of case disruptions have become routine. The last hearing held in the 9/11 case was in February, when bin Attash and bin al Shibh both claimed, within minutes of the judge calling the commission to order, that they recognized one of the defense team translators from their time in a CIA black site. He'd assisted their torturous interrogations there, they claimed.

The government did not deny that the same translator appointed to assist a defense legal team at Guantanamo had also been employed at a secret CIA prison, and after defense lawyers claimed their clients were being re-traumatized by the translators' presence, the judge adjourned the hearing to figure out what to do next.

The previous year, the 9/11 pretrial hearings were adjourned after defense counsel learned that an FBI agent had questioned a member of at least one defense team and asked him to become a government informant.

Those of us following the 9/11 military commission case have seen years' worth of these sorts of nearly-comical "mishaps." Whether due to incompetence or an actual government desire to spy on the defendants and intrude on what are supposed to be confidential attorney-client relationships, the result has been a sort of Keystone Cops version of a war crimes case over a mass murder that happened more than 14 years ago.

The September 11, 2001 attacks against the World Trade Center in New York and the Pentagon in Washington were the most serious terrorist attack ever on U.S. soil, leaving nearly 3,000 civilians dead. But the U.S. government's attempt to bring those terrorists to justice has unfortunately become more of a joke than a real effort to hold its perpetrators accountable.

Daphne Eviatar

Daphne Eviatar is the senior counsel at Human Rights First.

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