Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

10/19 Session: Yesterday at Guantanamo: Once Again, Questions Abound While Answers Elude

Francesca Procaccini
Tuesday, October 20, 2015, 9:15 PM

The five detainees accused of orchestrating the September 11th attacks, including the plot’s alleged mastermind, Khalid Shaikh Mohammad, were all present at yesterday’s proceedings in their ongoing military commission trial at Guantanamo Bay.

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The five detainees accused of orchestrating the September 11th attacks, including the plot’s alleged mastermind, Khalid Shaikh Mohammad, were all present at yesterday’s proceedings in their ongoing military commission trial at Guantanamo Bay. The men face joint charges of conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft, and terrorism. U.S. Military Judge Colonel Pohl presided.

Counsel for the Accused, Including Bin Attash Pro Se?

The session begins with introductions, but did not get far past this. To recap, the accused and their defense counsel (comprised of private attorneys and members of the Military Commissions Defense Organization) are:

  • Khalid Shaikh Mohammad – represented by David Nevin, Gary Sowards, and Derek Poteet.

  • Walid Bin Attash – represented by Cheryl Bormann and Major Michael Schwartz.

  • Ammar Al Baluchi (born Ali Abdul Aziz Ali) – represented by James Connell and Lieutenant Colonel Sterling Thomas.

  • Mustafa Ahmed Adam al Hawsawi – represented by Walter Ruiz, Jennifer Williams, Lieutenant Colonel Sean Gleason, and Suzanne Lachelier. Ms. Lachelier is a new member of Mr. Hawsawi’s defense team, who was sworn in at the session by Judge Pohl.

  • Ramzi Binalshibh – represented by James Harrington and Major Alaina Wichner.

Judge Pohl advises the accused of their right to be present at the commission sessions and the right to waive that right. Each morning for the duration of these sessions, which are expected to run until October 30th, the detainees will be informed of the time and date of each session and be afforded the opportunity to decide whether or not they wish to attend. The accused have the right to be present or absent during any session, so long as any absence is completely voluntary. The judge explained that a voluntary absence amounts to an unequivocal waiver of the right to be present during that session, but an absence does not at any time forgo the right to decide to attend a future session. Finally, the judge cautions that an accused’s absence or failure to cooperate in the sessions may negatively impact the presentation of their defense. Each of the accused indicates affirmatively they understand these rights.

The proceedings, however, do not progress any further, because Bin Attash veers the session in an unexpected direction by raising the issue of self-representation. When directed to confer with his counsel, Ms. Bormann, and to have her speak on his behalf, he refuses. Instead, he informs Bormann that he wishes to speak to the court directly, because he believes he can no longer put any trust in his defense team. Obviously surprised by this development, Bormann agrees that Mr. Bin Attash should be the one to raise this issue to the court, since she obviously cannot represent concerns of which her client did not apprise her.

Bin Attash asks the following questions about self-representation: does he have the right to represent himself? What are the procedures for self-representation in the commission? What steps will the judge take if he decides to represent himself? He claims he does not know the answer to these questions despite having asked the judge and his attorneys, and then opines that the detainees “have so many problems in the camp that take precedence over anything that they are discussing here in court. We are still in the black sites.”

In an attempt to get his hands around the situation, Judge Pohl grants a 30 minute recess for Ms. Bormann to consult with co-counsel and Bin Attash.

Bin Attash Asserts Ongoing Trauma and Rights Violations

The session resumes with all parties present, and Bormann begins by explaining Bin Attash’s grievances with the commission procedures. She relays that he believes he is still being subjected to trauma and psychological domination by the U.S. government and that his defense team cannot be trusted. Further, she informs the commission that Bin Attash would like to understand his pro se rights but that she is unable to advise him on this because the issue is one of first impression—and is particularly baffling considering that the U.S. government has denied the applicability of the Sixth Amendment in military commission proceedings.

Bormann asserts that Bin Attash believes he is still subject to torture in Guantanamo prison, as the “constantly changing scenarios in Camp VII” are a duplicate of what he experienced in the CIA black sites. Bin Attash “feels like he has no relief from the torture and that everything is orchestrated by the United States Government [in Guantanamo Bay] so that it takes away any of his ability to make voluntary decisions.” He claims ongoing psychological trauma from the torture he suffered between 2003-2006 and that this trauma is interfering with his ability to communicate with counsel. Bin Attash also believes there is a coordinated effort by the United States Government to “push him to just stop challenging what's going on in this commission,” and that complaining will only lead to his experiencing further trauma, which will further degrade his ability to assist in his own defense.

Next, Bormann explains that Bin Attash does not trust her or co-counsel Major Schwartz because the promise they made to him that their communications would be confidential has been violated. Attorney-client privileged materials were seized and read; FBI and CIA informants participated on detainee defense teams; and attorney-client conversations were intercepted. His defense attorneys have not succeeded in winning a motion to protect privileged materials from being seized, and Guantanamo’s Staff Judge Advocate apparently refuses to meet with his lawyers or to provide them his name. Bormann concluded: “Mr. Bin Attash says to me what good can you do, and I can't tell him that I can do him any good.”

Bin Attash, she goes on, wishes to know what his pro se rights are, in order to make an informed decision about whether to waive his right to counsel. Bormann admits, however, that she cannot advise him on this matter. She explains: “It is entirely unclear what procedures would apply to a pro se client in the military commission situation. This is a question of first impression. This is a court where the government has taken the position that the Sixth Amendment to the United States Constitution doesn't apply. So I can't possibly advise Bin Attash of his rights because I, frankly, don't know what they are.”

In the federal system, a pro se defendant has access to a law library, is free to compile legal research and to Shepardize cases, and may call a standby attorney if a legal issue or procedure is unclear. The U.S. government has not provided any of these tools to the accused at Guantanamo: Bin Attash does not have access to legal materials or the technology to Shepardize cases, does not have a simple way to write a motion, and is unable to pick up the phone to call counsel.

Judge Pohl attempts to tease out the issue by drawing an analogy to the 2006 federal trial of Zacarias Moussaoui, the so-called 20th 9/11 hijacker, in which Moussaoui represented himself pro se during the guilt phase of the trial. The military judge speculates that Moussaoui was likely given access to sufficient resources to present a defense but denied access to classified material. Bormann pushes back that even if the Moussaoui trial provides an example of adequate pro se rights and procedures in a terrorism case in federal court, Moussaoui was simply not held in “incommunicado detention without access to standby counsel and without the ability to make a phone call,” as Guantanamo detainees are.

Recognizing that the resolution of this question impacts the prosecution team, Judge Pohl calls another recess to bring in the government’s trial team.

So What Are Those Sixth Amendment Rights Outside the Sixth Amendment?

And so it falls to General Mark Martins, chief war crimes prosecutor, to address the question: what pro se rights does a Guantanamo detainee have in a military trial where the Constitution does not apply?

General Martins rejects the notion there is no standard to work off in devising a procedure for self-representation at Guantanamo. The starting point for him, however, is not the Sixth Amendment or the Moussaoui trial, but rather the pro se representation colloquy that is contained in Section 2-7-2 of the Military Judges' Benchbook. General Martins argues that pro se rights in a Guantanamo military commission would extend only so far as providing the basic ability to defend oneself, such as access to witnesses and evidence and a limited sphere of privilege to talk with co-accused detainees without monitoring. He states that the detainees’ waivable right to counsel does not include a right to access a computer or to call counsel at the defendant’s leisure. In fact, General Martins contends that the current limitations on Bin Attash’s ability to communicate with his co-accused or with the outside world would remain unaltered in the event he chose to represent himself.

In response, Judge Pohl quickly realizes there are two issues at play now, only the first of which is how self-representation would actually work at Guantanamo. As an aside, Judge Pohl has some choice words for camp officials on this point, reminding General Martin that what is decided in his courtroom is not always carried out with fidelity at the camp. (This point is echoed at the very end of the morning’s session by counsel for Binalshibh, who claims he is unable to sleep and therefore cannot make voluntary choices or participate in his defense because the camp is subjecting him to ongoing trauma and sleep deprivation tactics.)

The second issue Judge Pohl recognizes is how to ensure the accused has made a knowing, voluntary, and intelligent waiver of counsel rights. Unfortunately, this seemingly simply question opens up another legal minefield.

Bormann stands up to argue that the framework for self-representation cannot be whether Bin Attash is able to participate in his defense (that is the standard for when he is represented by counsel), but rather whether he can conduct his defense. On this point, she reiterates, it is entirely unclear if the rights and procedures just proposed by General Martin will adequately allow Bin Attash to conduct his own defense. And without this knowledge, it is impossible for Bin Attash to make a truly voluntary waiver of his right to counsel.

Compounding the problem is Bin Attash’s contention that nothing he does right now is truly voluntary, because he remains in a perpetual state of torture and coercion at Guantanamo.

But this just begs the question for Judge Pohl: If Bin Attash wishes to appear pro se, but no matter what the judge tells him it will not be a voluntary choice, the logical conclusion is that he can't voluntarily go pro se. So there is no need to devise a pro se system. Frustrations abound in the subsequent back-and-forth: Judge Pohl is baffled by the proposition that the government is preventing Bin Attash from exercising his right to self-representation because everything he does is involuntary, while Ms. Bormann insists that the failings of the military commission system make it entirely unclear how she should advise her client on pro se rights.

Ultimately, the Judge decides that the Military Judge Benchbook should be the starting point for resolving the issue, and he directs the parties to recess, confer, and return Tuesday to address the matter further.

And so the morning ends with more questions than it began: What rights and procedures are to be afforded pro se detainees in military commission trials? Can a detainee access or argue classified information relevant to his defense? How will a decision to proceed pro se affect the co-accused? Do other accused also feel that any decision to assert or waive the right to counsel is necessarily involuntary?

The sessions resumed this morning. Transcripts should be available by this evening, and we will have coverage of today’s proceedings tomorrow.

Francesca Procaccini graduated cum laude from Harvard Law School, where she was an executive editor of the Harvard Law & Policy Review and served as president of the Harvard Law ACLU. During law school, she worked in the White House Counsel’s Office and in the privacy and national security group of a private law firm. Prior to law school, she was a Coro Fellow in Public Affairs and worked in international development. She graduated summa cum laude from Barnard College in 2010 with a B.A. in Political Science and Italian Studies.

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