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

10/26 Session: Is There a Conflict?

Yishai Schwartz
Friday, October 30, 2015, 1:28 PM

Pre-trial motions continued on Monday in the case of the five Guantanamo detainees charged with involvement in the 9/11 attacks.

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Pre-trial motions continued on Monday in the case of the five Guantanamo detainees charged with involvement in the 9/11 attacks.

In Sunday’s unusual meeting, proceedings began with Judge Pohl noting the absence of some of the accused and receiving testimony that the absence was voluntary. Today though, only one defendant, Mustafa al-Hawsawi, has waived his right to appear.

The Court now turns to some brief housekeeping matters. First, Lieutenant Colonel Sterling Thomas (lawyer for Ammar Al Baluchi) corrects a minor misstatement that he made during yesterday’s hearing. Similarly, Assistant U.S. Attorney Fernando Campoamor-Sanchez requests a minor redaction to a document that defense has requested be unsealed. Campoamor-Sanchez also raises something more substantive: He wishes to make clear that the government strongly opposes delaying a ruling on the conflict question until after discovery. After only a few sentences, Al Balauchi’s counsel James Connell objects that the prosecution has already been permitted to argue this multiple times--while the defense has not. Judge Pohl responds that the defense will be given time to address both the conflict issue and the discovery issue.

Campoamor-Sanchez picks up where he left off, arguing that the defense is being inconsistent in insisting both that conflicts have placed them “in an untenable” situation and that a ruling on the conflict issue ought to wait for discovery. Second, a delay in the conflict ruling would seriously impair proceedings--as the question over conflict has prevented the prosecution and defense from working together. Lastly, Campoamor-Sanchez insists that the only related question the discovery requests purports to determine (whether there had been an investigation involving defense teams) has already been admitted by the government. There was such an investigation and it is now over.

James Harrington, attorney for Ramzi Binalshihb, responds. He notes that Campoamor-Sanchez still hasn’t provided any reason why discovery should not be given in the meantime. Furthermore, he argues that in all the cases the government cites, the conflict question is unrelated to the substantive questions at issue in trial and discovery. But in this present instance, the two are linked. Discovery is relevant to the conflict issue and should begin right now. Judge Pohl next asks defense attorneys Nevin and Bormann whether they wish to weigh in, but they decline, pointing out that this is entirely a rehashing of Sunday’s debate.

Suddenly, defendant Walid bin Attash interjects, complaining that he doesn’t have an interpreter and can’t follow what’s going on. His attorney, Cheryl Bormann, explains that due to an investigation, bin Attash’s interpreter cannot be present, and apparently the court’s translation services aren’t clear enough. Judge Pohl explains that they will finish with the current issue (292) and then recess to deal with the translation problems.

Connell then weighs in on the conflict and discovery as well. Using a colorful analogy to an affair between one’s wife and best friend, Connell explains that there are concrete questions a defendant will want answered before making a decision about whether to retain his lawyers. This requires discovery. Second, Connell dismisses that the Special Review Team’s insistence that potential conflict of interest makes turning over discovery impossible in the meantime. Citing a DC Circuit case United States v. Lopesierra-Gutierrez and state ethics codes, Connell argues that a defense team can litigate conflict allegations themselves. According to Connell, Lopesierra also establishes the importance of an independent counsel and of a “knowing and voluntary waiver of a conflict” in cases of potential conflict.

Next, Connell walks the court through five specific discovery requests, showing how each relates not only to the government’s historical attempts to investigate the defense, but also (potentially) directly to the conflict issue. Similarly, Connell defends that relevance of additional discovery requests by pointing that these requests go to the “intentionality” and “actual effects” of the government’s investigation, as well as the strength of the “firewall” the government has erected between the prosecution and the Special Review Team. (He notes that the absence of bin Attash’s translator and a member of the Binalshibh team due to an investigation is illustrative of the lingering “actual effects” of the government intrusion.) Connell insists that his client will need access to all of this information before he makes a decision about whether to retain his legal team.

Judge Pohl asks whether any other defense attorneys wish to be heard on this issue. Only Nevin speaks, briefly, pointing out that the commission has apparently received certain secret, ex parte documents that the defense has not seen. These documents are not listed in certain filings where one might think they should be, and so Nevin wishes to make sure that the commission is aware of this.

Campoamor-Sanchez then responds to Connell, arguing that “not a single line” of Lopesierra supports the idea “that discovery must be provided on the underlying details of an investigation” before a decision on conflict. What’s more, in the cases Connell cites to prove that an attorney with a potential waivable conflict can litigate are all cases where the attorney maintains that there is not in fact a conflict. Here, the opposite is true. The defense’s position --simultaneously that there is a conflict and that discovery must be given--is a novel argument that not a single case supports. The barriers to discovery have always been the MOUs and the ongoing conflict allegations; the first issue is resolved, and the court has the means to resolve the second immediately.

Having heard the arguments, Judge Pohl finally issues his ruling: First, he determines that the SRT’s representation is that the government’s “investigation is complete and closed and no further action will be taken on the investigation by any entity of the United States Government.” Second, based on this representation, he determines that there is no actual conflict regarding Harrington and his team. Third, the Commission adheres to its previous decisions to only appoint independent counsel for defendant BinalShibh, but not to do so for Khalid Sheikh Mohammed and all Baluchi. Fourth, Judge Pohl does direct the SRT to turn over any discovery related to the conflict-representation issue to the relevant defense teams. He announces that a written order will follow, and the court recesses for 20 minutes.

When proceedings resume, Bormann announces that defendant bin Attash believes he is ready to discuss pro se representation with the judge, but that she think they still need more time to investigate and clarify certain issues. She asks for time to properly prepare and inform her client, over his own objections. In particular, she needs to investigate an internal team matter that has come up over the weekend--a matter that may result in her withdrawal.

At this point, bin Attash himself speaks up, insisting that he is ready to address the issue now, and needs no additional advice from his attorney. He wants a closed, ex parte session so he can raise the issue with the judge directly. Judge Pohl tells bin Attash that even in making the request for pro se representation, he has conflated a number of legal issues, demonstrating why pro se representation is such a bad idea. He grants Bormann’s request for a day and a half recess, and announces that proceedings will resume Wednesday afternoon.

Yishai Schwartz is a third-year student at Yale Law School. Previously, he was an associate editor at Lawfare and a reporter-researcher for The New Republic. He holds a BA from Yale in philosophy and religious studies.

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