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

10/28 Session: Time, or Not, to Replace Defense Counsel

Francesca Procaccini
Friday, October 30, 2015, 2:45 PM

All the accused, except one, appeared in court after a day’s recess in the trial against the alleged orchestrators of the September 11th attacks. Only Mustafa Ahmed Adam al Hawsawi exercised his right not to be present at the proceedings.

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All the accused, except one, appeared in court after a day’s recess in the trial against the alleged orchestrators of the September 11th attacks. Only Mustafa Ahmed Adam al Hawsawi exercised his right not to be present at the proceedings.

The proceedings concluded on Monday with Walid Bin Attash indicating he wished to discuss his rights to counsel and pro se representation—an issue he first raised unexpectedly over a week and a half ago, on the first day these pre-trial hearings resumed. Judge Pohl granted the Bin Attash defense team a day and a half to research the issue this week and called the session to order Wednesday morning prepared to advise Bin Attash accordingly.

From Pro Se to Replacement of Counsel

Once more, Bin Attash forces the court to pivot from its expected course. Cheryl Bormann, counsel for Bin Attash, informs the court that Bin Attash is no longer interested in self-representation, and instead wishes for Bormann to withdraw as his counsel. The Chief Defense Counsel, Brigadier General John Baker, does not support this position and Bormann herself is obviously conflicted because her ethical duties do not allow her to simply drop the case after nearly four years of proceedings.

Judge Pohl acknowledges that Bin Attash has certain rights to replace his defense counsel, but makes clear that the exercise of those rights are supervised by the court and not by the government or defense counsel alone. The regulation governing excusal of counsel in Guantanamo military commissions appears to give unfettered discretion on this issue to the Chief Defense Counsel, who supervises the defense attorneys in these proceedings and is a member of the Office of Military Commissions. But Judge Pohl rejects this interpretation, stating that no court would permit a third party to unilaterally sever an attorney-client relationship without the approval of the judge.

Judge Pohl calls a brief recess for Bin Attash to confer with his counsel. He wants to ensure that Bin Attash clearly understands that excusal of counsel and self-representation are two distinct legal issues that trigger different procedural and substantive rights.

The Guantanamo Version of the Right to Replace Counsel

The parties reconvene and Bormann confirms that Bin Attash does not wish to proceed pro se, but rather requests to have her withdraw as counsel. As this is a right of the accused, Judge Pohl turns to address the matter with Bin Attash directly. The judge recites the accused’s full rights to counsel in the military commission system, including the right to replace counsel. These are:

  • The right to be represented by detailed military defense counsel free of charge.
  • The option to request the Chief Defense Counsel assign a specific military attorney in the Office of Chief Defense Counsel, Military Commissions. If the request for this specific military counsel is approved, the detailed defense counsel would normally no longer represent the accused. The accused may ask the Chief Defense Counsel to allow the detailed defense counsel to remain on the case, but this request may be denied.
  • The right to at least one additional detailed counsel who is learned in the law relating to capital cases and who may be a civilian or a military lawyer. This detailed learned counsel is also provided free of charge.
  • The right to have a civilian lawyer of the accused’s own choice at no expense to the government. This civilian lawyer must be a U.S. citizen admitted to the practice of law in the United States; must not have been subject to disqualifying action by a bar or other competent authority; must be eligible for a top secret security clearance; and must agree in writing to comply with the orders, rules and regulations of the military commissions. If a civilian lawyer is brought on the case, the detailed defense counsel and detailed learned counsel will also continue to represent the accused unless the accused specifically waives the right to be represented by either or both of these attorneys.

Bormann is Bin Attash’s learned detailed counsel and Major Michael Schwartz is his detailed military defense counsel. Bin Attash wants to know only about releasing Bormann, so Judge Pohl advises him to continue to consult with Major Schwartz about his legal issues.

Next, Judge Pohl explains that Bin Attash must show the court good cause to sever his relationship with Bormann. If the court finds good cause and excuses Bormann, then Bin Attash may request the Chief Defense Counsel to appoint a new learned detailed counsel paid for by the United States to represent him. The Chief Defense Counsel may deny this request, and will choose who to assign should he grant the request. Bin Attash may also retain a civilian lawyer who is not connected to the military and who will not be paid by the U.S. Government, so long as the attorney meets the qualifying criteria.

The prosecution agrees with this recitation of the accused’s counsel rights, and only clarifies that the learned counsel, although selected and appointed by the Chief Defense Counsel, is not necessarily a military lawyer or lawyer already connected to the military commission system. A pool of civilian attorneys who are trained in capital trials have volunteered to be hired by the Office of Military Commissions as outside contractors to represent the accused.

The threshold inquiry, therefore, is whether Bin Attash can show the court good cause to excuse Bormann. The subsequent issue this raises is how Bin Attash will present his argument to the court. Bormann argues that it cannot be done in open court because the relevant facts include privileged attorney work product. Finally, Judge Pohl reiterates his position that once counsel appears, it is the judge who determines good cause for counsel’s removal. Every court and all the relevant caselaw make clear that “the judge is the ultimate thing. . . . people can write regulations all they like, but you still have to take them in context of the law.” Judge Pohl concludes that this statement of law is so clear to him that the only reason for further discussion of it would be if he and General Baker eventually disagree about whether there is good cause to dismiss Bormann and he must decide whose opinion controls.

However, Major Schwartz indicates that Bin Attash is not prepared to show good cause at the moment and requests a recess.

“A never-ending do-loop”

After the recess, Major Schwartz explains that Bin Attash is not prepared to have a colloquy with Judge Pohl for three reasons: he is not acting with full legal advice; he is not acting with all the information; and it is not clear how the colloquy should proceed.

First, Major Schwartz indicates that he is now acting under conflict because he has been called to advise his client on capital case strategy, of which he is not an expert, without the assistance of learned counsel. In essence, Schwartz raises the question whether Bin Attash has access to counsel on the issue of removing Bormann without the benefit of Bormann’s advice as learned counsel. Judge Pohl does not react kindly to this circular argument, expressing that “it appears to be a never-ending do-loop: he can't make a decision until he's been fully informed, but [you] can't fully inform him, therefore he can't make a decision, therefore let's do what, nothing?” If Mr. Bin Attash is not in a position to articulate on the record why he needs to be severed from Bormann’s representation, then the court is inclined to leave the current state of affairs in place with the relationship intact.

Next, Major Schwartz argues that he needs time to provide advice to Mr. Bin Attash on what constitutes good cause. But Judge Pohl responds that the good cause determination is made by the judge, all Bin Attash has to do is recite the factual basis for his wanting to dismiss Bormann and the court will decide, as a matter of law, whether those facts are sufficient to establish good cause.

Schwartz responds that the problem is Bin Attash doesn’t yet know all the relevant facts, so needs time to investigate them. But Judge Pohl does not understand how unknown facts could impact Bin Attash’s current desire to remove Bormann? Schwartz responds that establishing a case for good cause requires more information, and that he or the Chief Defense Counsel should be given the time to find that information for Bin Attash. Additionally, it behooves the court to allow the Chief Defense Counsel's to conduct his own good cause analysis first because if he determines there is no good cause then the court can avoid having to address the question.

Judge Pohl is not so sure. Even if the Chief Defense Counsel finds no good cause, it is still Bin Attash’s right to raise his request with the court and it is the court’s prerogative to make the final good cause determination, so “at best General Baker's opinion is an advisory opinion to be given such weight as it deserves.”

Finally, Major Schwartz reminds Judge Pohl that it is still undecided whether the good cause colloquy should be conducted in open court, in a closed session, or in a closed filing. If the court does not conduct the inquiry in a closed session, than Bormann insists on extra precautions to protect Bin Attash from inadvertently relaying work product information to the government, especially considering that this is a capital case and the protections that inure to a capital defendant are much greater and given much more deference.

Mr. Walter Ruiz, counsel for Hawsawi, stands up to agree that forcing a defendant to choose between exercising their counsel rights through a colloquy and waiving attorney-client privilege by engaging in the colloquy is unacceptable. Judge Pohl responds that his position is simply that the accused must establish good cause on the record, whether closed or open, and that he is not seeking advisory advice from counsel who do not have standing on this issue.

Major Schwartz again argues that he needs more time to investigate the facts. Judge Pohl grants that there is “no clock on these cases,” but insists that requests for more time must be reasonable. Here, he does not understand why Bin Attash’s team needs more facts to establish good cause when Bin Attash is already asking the court to sever his relationship with Bormann. When does the hunt for facts end? When will he be in a position to make a case for good cause? Major Schwartz suggests that Bin Attash would be prepared to answer the judge’s questions by the next set of hearings, currently scheduled for December.

Judge Pohl turns to the government to ask whether it feels it has the right to know what the good cause is and to be heard on whether or not it is good cause, assuming the good cause would necessarily implicate attorney work product and probably attorney privileged material. Trial counsel Ed Ryan responds yes, but also that the prosecution is willing to discuss ways to minimize the amount of privileged information that is disclosed. Bormann suggests having the colloquy in a closed setting and then having Judge Pohl determine what privileged material ought to be redacted and what material is relevant and necessary to provide to the government so they can formulate their position.

Ryan suggests an alternate process by which the judge would ask Bin Attash questions, and Bin Attash would give his responses to Major Schwartz, who could filter out any privileged information and relay Bin Attash’s responses to the court in an open setting where the government has the opportunity to observe Bin Attash and listen to his answers as they come through Major Schwartz. Bormann objects, however, that this would put Major Schwartz in a particularly difficult position because the information conveyed to him by Bin Attash may not be consistent with his own knowledge of the information.

With this, Judge Pohl calls a recess.

Decisions and a Plan Forward

Judge Pohl returns with decisions. The defense’s request for in essence a two-month continuance to show good cause to remove Bormann is denied.

The government’s proposed colloquy procedure raises issues of both practicality and legality: filtering Bin Attash’s answers through Major Schwartz may not be efficient or effective, and legally Judge Pohl must hear directly from Bin Attash.

The court finds under Rule for Military Commission 806 that there are unusual circumstances that would warrant a closed proceeding, and as such will conduct one later the same day. Judge Pohl orders only Bin Attash and his defense team to reappear at 2:00 pm so he can discuss directly with Bin Attash what good cause the accused believes exists to excuse Bormann. Upon the conclusion of that hearing, the court will issue appropriate orders as it deems fit. Thereafter, the prosecution will be apprised of the operative facts that constitute or do not constitute good cause so that it is in a position to argue its position to the court.

We recess until 9:00 am Thursday morning.

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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