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The five Guantanamo detainees on trial before a military commission for allegedly orchestrating the September 11th attacks all returned to court Tuesday morning, as pre-trial proceedings in their case continued for a second day in a row. On Monday, the session was almost immediately derailed by detainee Walid Bin Attash’s unexpectedly raising the possibility of representing himself pro se. His simple question to presiding Military Judge Colonel Pohl, about what rights and procedures are afforded pro se defendants, quickly opened a Pandora’s box of legal and logistical unknowns.
The parties recessed for the day on Monday to appraise the issue. Judge Pohl issued a course of conduct order that night, detailing the advice he would give a detainee on the benefits and drawbacks of self-representation, in order to ensure that any decision to waive counsel is knowing, voluntary, and intelligent. The order, marked as AE 380, was given to defense counsel and the accused, but has not been made public.
Although Bin Attash raised the issue of self-representation, it is counsel for Ammar al Baluchi, Mr. James Connell, who stands to argue the potential deficiencies of AE 380. He anticipates that his own client and possibly others will also seek to go pro se, given the long history of what he characterizes as the government’s “approach of incentivizing pro se representation on the part of the defendants to try to drive a wedge between them and their attorneys.”
Connell raises two fundamental objections to the course of conduct order under McKaskle v. Wiggins: the first concerns the accused’s access to classified discovery; the second involves the accused’s ability to conduct his own defense in closed hearings.
McKaskle is a 1984 Supreme Court case upholding a hybrid form of pro se-standby counsel representation as consistent with the Sixth Amendment, so long as standby counsel speaks in addition to the defendant rather than instead of the defendant. The problem created by AE 380, Connell argues, is that it creates a hybrid form of representation whereby the pro se accused may conduct his own defense on unclassified issues, but counsel is left to control the defense on classified issues. In the military commission system, only the attorneys are permitted to access classified materials, so only defense counsel may conduct full discovery, file motions, or attend hearings involving classified information. Connell calculates that approximately one-third of the materials the prosecution has turned over to him are classified. In addition, the prosecution has filed some motions that are so highly classified that the defendants do not even know their topic, making it impossible for a pro se defendant to meaningfully direct standby counsel’s representation of him on these matters. If the court maintains the rule for pro se defendants that no detainees are permitted access to classified materials, then the result will be bifurcated representation rather than hybrid representation, with standby counsel speaking instead of the accused on one-third of all material issues.
Judge Pohl interjects to state the obvious and uneasy conclusion of this argument is that a pro se defendant must have access to classified information. But Connell says no, there is a middle ground consistent with Moussaoui and Subasic (cases involving a pro se defendant’s access to classified materials in a federal terrorism trial): the pro se accused must be given access to all necessary discovery, meaning any classified information that the court deems material or exculpatory and that cannot meaningfully be substituted or redacted.
This raises a legal and a procedural question for Judge Pohl: first, how would the materiality determination work? And second, what is the definition of “material” under the Subasic standard?
As to the procedural question, Connell suggests that standby counsel would be charged with recognizing necessary classified material and petitioning the court, at the pro se accused’s direction, to determine if it fits the Subasic criteria and so must be given to the pro se defendant. After some explanation, counsel and Judge Pohl agree on this point: the only classified or otherwise sensitive information a pro se accused could access is a narrow category of information that is both material and which cannot be substituted without placing the accused in a worse position than he otherwise would be. Therefore, one barrier a pro se defendant in this trial must be made aware of is that he will only have access to classified information in very narrow circumstances, and likely there will be a huge amount of classified discovery he will not have access to.
What is the difference, then, between information that is material under Subasic and information that must be turned over to the defense because it is material under Brady? Connell pivots here and argues that actually, the standards for materiality under Subasic and Brady are identical. This leads to the conclusion that all classified discovery automatically meets Subasic’s materiality prong and must be examined for adequate substitution, then given to a pro se defendant either as is or redacted. Connell reminds the court that this proposal is not so absurd, since any diligent standby counsel will seek to have every piece of classified information evaluated for materiality and adequate substitution in order to provide that information to their pro se client. The only difference between these scenarios is that in one, standby counsel must take the time to write and file a motion to release the classified information to the accused. Moreover, under Yunis the prosecution is only required to hand over classified evidence that is both material and helpful to the defense, further ensuring that anything turned over would indeed satisfy Subasic’s materiality standard.
Judge Pohl is not convinced there would be a 100 percent overlap between material evidence that is discoverable under Brady and material evidence that must undergo an adequate substitution inquiry under Subasic. Connell only concedes that there would be less than total overlap if the prosecution, on its own out of an abundance of caution, turned over border-line material discovery. Connell draws on his examination of the 13,106 pages of classified discovery he has already received from the prosecution to assure the judge there is a very high correlation between production by the prosecution and materiality to the defense.
Connell then turns to his next McKaskle problem with AE 380. Under the judge’s proposed pro se procedures, it would be standby counsel who would represent the accused in closed sessions when classified materials are being discussed. This means that in all closed sessions, which may amount to the bulk of the trial proceedings, counsel would be speaking instead of the accused, rather than in addition to him. Since McKaskle prohibits such a scheme, Connell argues that a pro se accused must be permitted to attend closed hearings.
Judge Pohl spots a fault line here: how is this argument consistent with the analysis that standby counsel may, without the accused’s input, review classified discovery and ask the commission to find materiality and no adequate substitute? That proposed discovery procedure contemplates that standby counsel will screen and argue over access to classified materials without any involvement by the accused, so why would the same analysis not apply to closed hearings when the issue is the admissibility of classified information?
Connell draws a distinction between conducting one’s defense outside the court and defending oneself to the court; in other words, between ministerial tasks and actual trial advocacy. The first includes preparing motions, doing research, interviewing witnesses, and reviewing discovery. The latter entails in-court advocacy on important issues—in these situations, Faretta requires a pro se defendant be allowed to speak for himself. And in this case, Connell contends, the treatment of classified information is obviously a matter of great importance to the defense.
Judge Pohl again finds the difficulty in understanding exactly how this process would work in practice—under current rules, a military commission detainee is not even permitted to file the motion necessary to hold a closed hearing. Connell agrees that standby counsel would have to file all motions, but would only do so at the explicit instruction of the pro se accused. In many situations, the defendant would know the topic of the classified information at issue, either from personal knowledge, an unclassified summary, or because the topic of the classified material is itself not classified. From this, the pro se defendant could instruct standby counsel to file certain motions or not and thereby retain operating authority over his defense.
Agreeing that a pro se accused has the right to choose what motions to file or not, Judge Pohl again asks Connell to spell out exactly how a closed hearing would arise and progress in a pro se trial. Their confusion is evident as both Judge Pohl and Connell attempt to craft the procedural adaptations. In the end, Connell works out the following proposal: first, when counsel is given classified information, he or she relays the topic of that information to the accused; then, the defendant may give counsel permission to file a motion to grant the accused access to that material; next, if the motion is denied and a question arises about the use, relevance, or admissibility of this evidence, the accused may instruct counsel to file a motion for a closed hearing on this issue (known as a 505h hearing); finally, at this hearing, the accused must be afforded the opportunity to be present and make argument.
As Judge Pohl quickly realizes, however, we’ve now circled back to exactly where we began, which is the question of a pro se accused’s access to classified materials—if the commission denies him access under a Subasic analysis, all the defendant has to do under Connell’s proposal is have standby counsel file a motion for a 505h hearing and then he can hear the same information at the hearing.
The only solution to this complication that Connell can devise in the moment is to suggest that the pro se accused provide the commission with a theory of his defense and any arguments he thinks are relevant based on knowing the topic of the classified material at issue. The court may then rule based on this information. In other words, Connell suggests only discussing unclassified matters in a 505h hearing while the accused is in attendance, and having the prosecution present the classified material it seeks to use directly to the court or in a closed portion of a 505h hearing.
The idea of a partially-closed 505h hearing is potentially sound and perhaps even contemplated by the applicable regulations, but it is also the epitome of counterintuitive for Judge Pohl, who reminds counsel that the very definition of a 505h hearing is a closed hearing to discuss classified material. Furthermore, the regulations call for a 505h hearing before the court may convene a closed 806 hearing, at which classified material is actually used or admitted as evidence. The predicament is that without any closed 505h hearings, the court may never convene a closed 806 hearing, so the government would have no way to use any classified evidence the accused did not see—all because the accused is pro se?
Again, the solution Connell presents is to have a partially closed hearing, but he too seems confounded by the procedural and logical summersaults the situation presents. “Pro se representation is almost always a bad idea, for many reasons,” he concedes. “In Guantanamo, however, it is an especially bad idea because it is essentially impossible.” The logistical obstacles to pro se representation by a person in Guantanamo are simply unmatched as compared to pro se representation in other forums, whether federal, state, or even courts-martial, he argues.
The legal barriers include not only the denial of access to all materials the prosecution designates as classified or sensitive, but also to informational contraband topics, such as the history of the war on terrorism. Moreover, there are so many “known unknowns,” including the undecided rules about how pro se would work, making it impossible for the accused to knowingly waive his right to counsel. Logistically, the barriers to pro se representation multiply: the accused have no privacy; no law library; no place to review legal materials; no desk to work at; no ability to attend depositions; no knowledge of witnesses as the prosecution refers to these individuals by pseudonyms; and no technology to view video, digital, or audio evidence, regardless of its classification. Finally, a pro se defendant in Guantanamo would continue to be subjected to extremely harsh conditions, including long-term solitary confinement, intrusive seizures of his legal materials, the denial of rehabilitation services for torture, and the camp’s “controlled chaos” strategy of changing the rules all the time to maintain discipline and order.
Ultimately, Connell rests on the argument that “pro se representation at Guantanamo is impossible.”
Judge Pohl then gives Cheryl Bormann, representing Bin Attash, the opportunity to also provide argument on the issue of self-representation. Since Bin Attash only received a copy of the court’s course of conduct order that morning, however, she has not yet had time to discuss the matter with him and asks to reserve the opportunity to make arguments and file motions after consulting with her client. Judge Pohl assures her and Bin Attash that he will not make any immediate ruling on this and will allow counsel the opportunity to discuss it with the accused and then provide input to the court.
Bormann does take this opportunity to divulge to the court that following Monday’s session, the guard force put Bin Attash in a holding cell and turned down the air conditioner to a freezing temperature. Ms. Bormann reports that the guard force refused to raise the temperature when asked to do so and that Bin Attash began experiencing hypothermia, which brought him back to his torture. This is the type of action, she argues, that causes Bin Attash to not be able to think clearly and make informed, voluntary decisions.
Judge Pohl strongly suggests that if this type of problem arises again, defense counsel should immediately raise it with the prosecution and the guard force, rather than the court, because by the time he hears the complaint, the underlying grievance has almost always passed.
Finally, David Nevin, counsel for Khalid Shaikh Mohammad, stands to emphasize the point that it seems impossible to balance the rights of the accused and the protection of national security in this trial “without bending over backwards and following almost absurd trial procedures, just to allow the case to go forward.” At some point, he says, the government will have to give material evidence that is sensitive in nature to a detainee, if he chooses to represent himself pro se, in order to have a real trial. The issue of the defense’s access to classified information is, therefore, the “live wire of this case” and the “place at which this case goes forward or not.” If a pro se defendant is denied access to material evidence, the case cannot go forward in a fair way, so it cannot go forward at all.
In apparent agreement with the sentiment that this is, at the least, a critical issue, Judge Pohl decides he will make some amendments to his order and then provide defense counsel with the opportunity to make additional arguments and filings after reviewing the amended order and discussing it with the accused. He will likely adopt most of the government’s requested amendments because they amount to only stylistic changes and he will add a clause, consistent with Subasic, that there is a potential exception to the complete bar on the discoverability of classified information.
The idea today, Judge Pohl concluded, was simply to shape the battlefield on the issue of self-representation. He anticipates coming back the next morning―Wednesday―to discuss the issue with Bin Attash directly.
And with that, we are recessed for the day.