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

10/29 Session: No, You Can’t Fire Your Attorney

Cody M. Poplin
Tuesday, November 3, 2015, 3:44 PM

Judge Pohl gavels the session to order.

It appears, in contrast to some earlier pre-trial hearings, that almost all of the defendants are present in the court today. Only Mustafa al Hawsawi is the exception.

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Judge Pohl gavels the session to order.

It appears, in contrast to some earlier pre-trial hearings, that almost all of the defendants are present in the court today. Only Mustafa al Hawsawi is the exception.

Trial Counsel Swann asks the Staff Judge Advocate on the stand whether he had the occasion to inform Al Hawsawi of the proceedings this morning. It seems the SJA had indeed informed Al Hawsawi of the proceedings and his right to attend and Mr. Al Hawsawi once again knowingly and voluntarily waived his right to be present.

Can Bin Attash Fire His Attorney?

With the roll called, Military Judge James Pohl now turns to other matters, specifically the ongoing discussion as to whether Mr. Walid Bin Attash may dismiss his attorney, Cheryl Bormann. The defense has requested that the transcripts of the previous day’s colloquy between Judge Pohl and Bin Attash’s defense team be sealed. Bormann explains that the proceedings were “not germane” to the case and therefore were “not relevant to the prosecution.”

Judge Pohl doesn’t seem to be immediately convinced. He asks Bormann if the government does not have the right to weigh in on whether Bin Attash has good cause to dismiss his counsel. Bormann demurs, saying that it is ultimately the defendant's right and the judge’s determination, not the prosecution's opinion, that matters here. After a few rounds of hypotheticals with Judge Pohl, she makes herself clear: her client has a right to keep “matters related to his defense as sacrosanct as possible” and that a large portion of the discussion yesterday consisted of sensitive defense theory. If the court were to release the transcript, the government could utilize Bin Attash’s thought process “in a prosecution where they’re seeking to kill him.”

With that, Judge Pohl turns to Trial Counsel Ryan. Ryan believes that the government does have a dog in this fight, since if the accused were to fire his counsel, it would significantly affect the speed of the proceedings, and perhaps even affect appellate issues looking backwards. Bin Attash’s decision to dismiss counsel would not just affect his defense team, it would affect “everything in this courtroom,” and the United States has an interest in that. Bin Attash’s motion has caused “a complete derailment” of the proceedings. As such, the United States has the right to be heard on the matter of whether or not Bin Attash has good cause to fire his attorney.

Judge Pohl seems to buy some of what Ryan is selling, and asks a follow-up question regarding whether the prosecution is prepared to state what it would consider good cause without actually knowing Bin Attash’s reasoning. To Judge Pohl, it seems, there are two issues at play. One is strickly legal: what is good cause under the law? The other issue is “the balancing” of the “government’s interests” and “the accused’s protection of the attorney work product and privileged material.”

Mr. Ryan is not pleased with Judge Pohl’s structuring of the question. He notes to the judge that, should Judge Pohl ask him to proceed in outlining what is good cause without knowing Bin Attash’s reasoning, all he could do “is recite to the commission the relevant factors of determination.” Ryan does not think that would aid the court since surely Judge Pohl knows the legal authorities as well as he does.

Seeing as he is unlikely to get the entire transcript though, Mr. Ryan seizes on Judge Pohl’s balancing question and proposes an alternative. Judge Pohl could read through the transcript and decide what factors are important or necessary for the government to see in order to not “infringe on the defendant.” He could redact the rest based on recommendations from the accused.

Judge Pohl pauses.

“Ms. Bormann,” he says, “I’m going to ask you about [] the first paragraph” of yesterday’s request to seal the transcript from his colloquy with Mr. Bin Attash. After glancing at the paragraph in question, she is okay with him discussing it in open court. He reads aloud:

Pursuant to R.M.C. 806, the commission should seal the attached transcript of Mr. Bin’Attash’s 28 October 2015 R.M.C. 806 hear in its entirety. In the alternative, the commission should only consider releasing portions of the transcript in the event the commission finds good cause to excuse learned counsel. And in further alternative, the commission should release only those portions of the transcript not redacted in Attachment A.

Judge Pohl now says it’s clear the bidding is between three alternatives: releasing an unredacted transcript, a redacted transcript, or not releasing a transcript at all.

Bormann reiterates the defense’s position that none of Bin Attash’s communications should be disclosed to the prosecution. Failing that, the commission should only release the already redacted transcript proposed by the defense in 380W, the document requesting the commission seal yesterday’s proceedings. Even so, Bormann reiterates that unless the commission finds that Bin Attash has good cause to dismiss her, there is no need to give the government anything.

Judge Pohl has made up his mind now. He can rule on this issue without further input from the prosecution. He decides that he will not release any of the transcript to the government and then quickly pivots to the crux of the matter.

In order to dismiss counsel, the accused must show good cause, Judge Pohl says. He says that he will release an opinion outlining his view in detail, but based on what Bin Attash said in the previous day’s colloquy, he has not shown good cause.

Now addressing Bin Attash, he rules, “you have failed to meet that burden.”

And with that, Judge Pohl calls for a 15 minute recess.

Can Bin Attash Overrule His Attorneys?

We return from recess amid some confusion about the end of the previous session and what Judge Pohl said regarding to nature of Bin Attah’s relationship with Counsel Bormann. It seems Bin Attash did not quite hear Judge Pohl. Pohl reiterates that he will issue a long ruling that explains his rationale that the defendant has not established good cause for dismissal of his defense team, but that his defense counsel must, in turn, do what Bin Attash asks. In this case, it’s ultimately Bin Attash’s defense and Bin Attash’s life at stake.

Several attorneys of the other accused interject; it seems they do not see that as an accurate statement of the law. Judge Pohl realizes he’s made too broad a statement in his explanation Bin Attash. He now tells Bin Attash that there are certain motions that his counsel may have a responsibility to file on his behalf, even over his objections. But that even in those circumstances, his input would be considered.

Mr. Nevin, defense counsel for Mr. Khalid Sheikh Mohammed, is still not satisfied. Judge Pohl, seeming a little rushed, interrupts him, but then asks him to continue. Nevin now pauses and says that he would need more time to research the issue to come to a proper conclusion on the rights of the accused to overrule his defense team or to present in court why he would like to do so.

Judge Pohl now agrees; he doesn’t have a full grasp on the issue himself either, and would welcome input from the defense counsels. He tells Bin Attash that “it’s just not a simple yes-or-no answer.” Bin Attash is fine with that, “there’s no problem,” he says.

Defense attorneys will return to the commission with briefs on what the rights of the accused are to overrule and challenge defense counsel.

An Unlawful Influence?

Now Major Derek Poteet, attorney for Mr. Khalid Sheikh Mohammed, addresses the court. It seems that Mr. Poteet has filed an emergency motion charging the Secretary of Defense and the Chairman of the Joint Chiefs of Staff with unlawful influence based on remarks before the Senate last week. Poteet says that the “there are serious consequences” to the statements, both of which condemned an order by the military commission that barred female guards from escorting detainees to and from legal proceedings. Poteet calls for an immediate abatement of proceedings to allow for a thorough investigation into “this unlawful influence.”

Judge Pohl is confused by Poteet’s request. He asks, “isn’t the issue whether I’m unlawfully influenced?” He continues, “Which part of the proceedings does it affect other than me?”

Poteet then suggests that it might affect the defendants in this case and the trial judiciary. But that doesn’t seem to be enough for the commission, and Judge Pohl rephrases his question. “Why should I abate the proceedings?” He suggests that the normal course of business “is to file pleadings, have it fully briefed, take evidence as necessary, and then follow the normal process.”

Poteet responds that under the Military Commissions Act or the Regulation for Trial by Military Commission, only the Secretary of Defense has the authority to review or remove the chief judge of the proceedings. In this instance, “the direct superior of a judge in an ongoing case publicly, officially, formally” criticized the proceedings of the commission.

Even so, Judge Pohl notes that this is not the first time the issue of unlawful command has been raised and, while the defense may yet get remedy, he sees no reason why it cannot be handled in the normal course of business. He was not even aware of the comments before the Senate until they were raised by the defense. He will, however, revisit the issue when they get to issue AE254, the role of female guards at GTMO, on the current docket.

Is Bin Al Shibh Competent to Stand Trial?

With that, Judge Pohl turns to the next item on the docket, AE152. In swift order, he dismisses the government’s request that he convene a hearing to declare Mr. Ramzi Bin Al Shibh competent to stand trial. Seeing as no evidence has been presented that Bin Al Shibh is actually incompetent, the default is to presume he is competent to assist in his defense and stand trial. Judge Pohl rules that Bin Al Shibh’s complaints under AE152 about vibrations and noises in his cell and his occasional speaking out of order in court do not sufficiently indicate there is a competency issue.

There’s language to be settled for an order on the issue yet though. Previously, Judge Pohl asked Mr. Harrington, Bin Al Shibh’s attorney, to draft a proposed order for a formal reporting system through which Bin Al Shibh can register complaints. The prosecution has made edits to the proposed order. They would like for it to include the words, “The prosecution has denied that the JTF guard force intentionally harassed or disrupted Mr. Bin al Shibh.” Yet Trial Counsel Tribett concedes to Judge Pohl that the language is not necessary for the order, so we move on to other edits. Trial Counsel would like other language regarding identification of guard personnel removed from the order on the basis that it unduly burdens the guard force and would potentially “infringe upon JFT-GTMO’s ability to lawfully detain” Bin Al Shibh.

Yet Harrington wants the guard force to wear identifying numbers. He doesn’t want to be writing complaints of abuse that ask the SJA to look into matters, but present nothing more than generic physical descriptions of certain guards. There are, it seems, a lot of 20-something, white males at the camp. Identifying markers “makes it easy for everyone.”

Judge Pohl then consults Mr. Trivett again. The question at hand? Does a detainee have the right to know the identification number of a guard? The trial counsel does not dispute that the accused has this right and in addition, also has the right to file complaints about the guard staff should he feel that one of them has abused him. However, according to Mr. Trivett, Bin Al Shibh has proven “quite prolific in doing this” already. He doesn’t think the judge should interject himself into a process that already exists. Judge Pohl understands the contention, and rewords the order to read, “Mr. Bin Al Shibh may report alleged violations in accordance with JTF policy.”

But Harrington is not satisfied with the current system of reporting. For one, detainees have not been made aware of the procedure. And two, Bin Al Shibh is often not told whom he is communicating with anyway. These disturbances, reported by Bin al Shibh, are affecting his defense as he is often not able to get up in the day to meet with counsel.

Judge Pohl understands and says he will issue an order in due course.

The court closes the second session with a few housekeeping matters and Judge Pohl again calls a 15 minute recess.

The CIA Translator: Must We Touhy?

The court is called to order for the final time today. All the parties that were in court before recess are have returned to the chambers.

The commission begins with discussion on AE350, or how a former CIA translator ended up on a defense team. Learned Defense Counsel Connell begins the bidding, saying he is not sure they will be able to make much progress in a non-classified setting, especially since one of his arguments itself is classified, but he reluctantly agrees to start “the dance.”

The defense would like to depose the CIA translator, but Judge Pohl wants to know what the defense is required to provide to the CIA beforehand under Touhy regulations. Connell notes that the CIA Touhy regulations are found at 32 Code of Federal Regulations 1905.1 to .4 and impose no specific duty on the defense. He’s not convinced that the Touhy regulations even apply in this circumstance. But if they do, there are two Touhy regulations that impose a duty to do something. The first requires that, “when a demand for production is made upon an employee, the employee shall immediately notify the litigation division, which shall follow the procedures set forth in this section.” Connell makes clear that this first regulation only places obligations on a CIA employee and the Office of General Counsel, not the defense.

The second duty requires that “a reasonably detailed description of the testimony sought” be “furnished to the CIA office of General Counsel.” Mr. Connell confirms that he has produced these affidavits in 350A and in 350Y. As such, Connell believes he has complied with the Touhy regulations, even if he is not convinced that the Touhy regulations should apply in these circumstances, since the defense, under military commission rules, does not itself have authority to produce witnesses. Instead, they must be produced by the prosecution.

Judge Pohl wants to clarify that Mr. Connell sees the Touhy regulations as simply a way to avoid CIA employees being called to testify without notice to the Agency. And yes, that is what Connell thinks. Moreover, since the government is the one to actually call the witnesses under these proceedings, there’s no way that the government does not already know if its own employees are being called. It’s interests are by default represented.

“I gotcha,” says Judge Pohl. However, he wants clarification as to whether under Mr. Connell’s formulation of Touhy, the CIA’s Office of General Counsel would have any role in delineating the topics about which an employee can testify. Without direct notification, how could they?

Mr. Connell repeats his argument that “here in this court … the whole United States Government’s interests are represented by these prosecutors.”

Aside from whether the Touhy regulations apply to the military commissions in general, Mr. Connell does not think they apply to the individual in question. There is a factual question at play as to whether the person at hand is an employee or was ever an employee as defined by the Touhy regulations. It seems defense counsel has submitted a classified document presenting evidence relevant to the question.

With that, Mr. Connell yields to Trial Counsel Ryan, who, it should come as no surprise, disagrees with Mr. Connell’s characterization of the Touhy regulations and their corresponding requirements.

Before getting to that though, Judge Pohl wants to know whether the documents submitted by the defense would satisfy the Touhy regulations anyway. Ryan suggests that they do not. The notice Connell has brought forth comes in the form “of various pleadings” and are “broad and vague and speak in generalities.” For these reasons, the prosecution should not be in the business of interpreting with sufficient specificity, what the defense is seeking in terms of testimony. While the defense may want to keep what it seeks vague in order to keep it secret from the prosecution, the Touhy regulations require that they submit their topics “with reasonable specificity.”

This seems somewhat immaterial to Judge Pohl, who asks if the defense could not submit whatever they wanted as their Touhy notification as long as they were willing to accept the answer they received from the CIA’s General Counsel on account of their filing. If they fail to meet the requirements, the defense just won’t get the answer it wants.

Judge Pohl now returns to Mr. Connell, who informs the court that whenever defense counsel gets a bounced email from the prosecution, it is returned by a server. It is absurd, in the eyes of the defense, to claim that the CIA is not aware of the proceedings. The government “cannot pick and choose which parts of the United States Government it represents in its tactical interests in any particular hearing.”

But Judge Pohl wants to know if the disparate filings throughout the proceedings should count as a notification. Shouldn’t a Touhy notification come tied together in a single notice? Mr. Connell says it just doesn’t work like that in the real world of military commissions, where “pieces of classified information flutter by our field of vision” and must be incorporated on an ad hoc basis.

Judge Pohl tells Connell he is “selling himself short” and is seemingly unmoved by Connell’s complaint about information coming over time and in dribs and drabs. After all, there is a specific moment in time when counsel decides to request the production of a witness and that is when the supporting documentation is required. That documentation can be supplemented later, if necessary. Connell once again registers his disagreement.

WIth no solution at hand, Judge Pohl decides that this will need to be settled in a classified session, and after scheduling the closed-door session for later in the afternoon, pivots to AE254, the role of female guards in the camp.

Can Female Bodyguards Escort Detainees?

Judge Pohl notes that following his order last February that barred female guards from transporting prisoners, he was subject to an equal opportunity complaint, presumably filed by the female guard force. However, since the initial filing, he has heard nothing about the complaint.

Learned Defense Counsel Ruiz rises to offer two forms of relief for what he considers unlawful influence: in the first, he asks that the judge recuse himself from hearing this issue since he is or was the target of a related investigation; and second, that he put the decision on hold until it is clear that the investigation is over. Ruiz also mentions the discussion earlier regarding the comments of the Secretary of Defense and the Chairman of the Joint Chiefs of Staff and asks to supplement earlier pleadings on the subject based on these new statements.

With that, Judge Pohl tells Mr. Ruiz not to tell him things he does not already know about the potential investigation. If Pohl does not know about the investigation, he cannot be influenced by it. Ruiz says he understands, but notes that he will no longer be seeking recusal as that specific remedy would no longer “cure the unlawful influence.”

“The statements that have now been made publicly” and any other military judge would also be aware of the statements. Ruiz simply wants to be able to file a supplement to the pleading before Judge Pohl rules on the issue.

Defense counsel Nevin rises to request time for discovery before doing any voir dir of the judge, as a voir dire cannot be meaningful without understanding the scope of the information out there. But after a few more times around on the issue of what the judge knows and his intentions, Judge Pohl decides to pause on the issue for the day and take up AE254 on Friday. He will permit the taking of evidence (the testimony of four previously scheduled witnesses) in the next day’s hearing, noting that the issue has been “percolating” since January 2015. Now is no time to postpone the issue.

The defense lawyers are puzzled here, again. They only knew of two witnesses on the docket. Bormann concedes she’s been occupied with other matters, most notably almost being fired by her client. A few notes of explanation from the Trial Counsel and we’re finally set for lunch.

Judge Pohl hammers out the session, putting the commission in recess and then behind closed doors until 9:00 am on Friday, 10/30, the last day of the calendar’s pre-trial hearings.

Cody Poplin is a student at Yale Law School. Prior to law school, Cody worked at the Brookings Institution and served as an editor of Lawfare. He graduated from the UNC-Chapel Hill in 2012 with degrees in Political Science & Peace, War, and Defense.

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