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

7/20 Session: There's Only One Way to Pro Se

David Hopen
Friday, July 22, 2016, 2:30 PM

It’s Wednesday morning and we’re back at Guantanamo Bay for more pre-trial hearings in the case of the five men accused of plotting the 9/11 attacks. The previous two days have been closed sessions, but now we’re all assembled for a public session. We begin, as always, by establishing the identity and presence of the prosecution and of the five defendants and their legal teams. Everybody’s here.

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It’s Wednesday morning and we’re back at Guantanamo Bay for more pre-trial hearings in the case of the five men accused of plotting the 9/11 attacks. The previous two days have been closed sessions, but now we’re all assembled for a public session. We begin, as always, by establishing the identity and presence of the prosecution and of the five defendants and their legal teams. Everybody’s here.

Yet just as soon as we’ve begun, Walid Bin Attash interrupts the process to tell Judge Pohl that he has something to discuss. It seems he is still having problems with his legal team. He wants Major Schwartz and Cheryl Bormann, two of his four attorneys, excused. He’s asked Ms. Bormann to sit at the back of the courtroom.

He then proceeds to put the following things on record: 1) he has neither met nor exchanged legal mail with his legal team since February; 2) he no longer can meet with his legal team’s analyst and paralegal, with whom he sometimes met, as his lawyers have “a new rule where the paralegal and the analyst are not allowed” to discuss “any legal issue”; 3) the reason he previously declined to put this issue on record is because Brigadier General John Baker, the Chief Defense Counsel, told him he would attempt to resolve the issue.

Bin Attash then stresses that he can no longer “bear” the “behaviors” of his attorneys, that he distrusts Bormann and Schwartz, both of whom have begun “feeling so powerful that they can do whatever they want,” and that he fears his other two attorneys, Major Matthew Seeger and Edwin Perry, are “under the control of the female attorney.” Following these remarks, Bormann confirms that she wants to rest on her pleading, after which Judge Pohl has Bin Attash’s new attorney, Edwin Perry, get on the record by listing his qualifications.

Next, Judge Pohl turns the room over to General Baker, who filed an amicus pleading asking to be heard on Bin Attash’s issue. General Baker boils down Bin Attash’s situation with his attorneys to a single question, the crux of which will consume the entirety of today’s hearing:

In an appointed counsel situation in a capital case, can a client fire a subordinate counsel over the lead counsel’s objection and after the appointing authority and the court each independently found no good cause to sever the attorney-client relationship between the accused and either the lead counsel or the subordinate counsel?

A long-winded and deeply technical discussion ensues. General Baker argues that Bin Attash needs “good cause” to excuse his representation, which in this instance he lacks. General Baker and Judge Pohl engage in a back and forth on this point, debating whether Rule 505 necessitates good cause to excuse representation. General Baker arrives at this conclusion: if Bin Attash cannot show good cause, then the only way in which he can get rid of Schwartz is by excusing his entire legal team and proceeding pro se. In a trial with appointed counsel, the accused does not have the right to dismiss select members of his defense, unless he can demonstrate they are ineffective counsel or some other good cause.

Edward Ryan, an attorney for the United States, then informs Judge Pohl that he is prepared to respond, but asks for a moment with the Chief Prosecutor and co-trial counselor. Judge Pohl agrees, calling the Commission into a ten-minute recess.

Judge Pohl gavels us back into session.

After the brief recess, Ryan argues that Bin Attash actually has three options: 1) he can accept his defense team as is; 2) he can opt for total self-representation but keep Seeger, his detailed military counsel, as standby counsel, as per Farretta v. California; 3) he can fire Bormann without good cause as long as he does not seek replacement. He then complains that Bin Attash’s issue with his lawyers has been dragging on for far too long, is clearly “not getting better” and needs to be resolved one way or the other. Ryan puts this last point bluntly: “The prosecution does not care who his lawyers are.”

General Baker responds to Ryan’s comments, rejecting the government’s position that Bin Attash can waive everybody but Seeger and reinforcing his initial two-option scenario: Bin Attash either must accept the counsel appointed for him, or go pro se. He concludes by telling Judge Pohl that the current gridlock cannot be overcome until “you make a decision.”

Next up is Perry, appearing for the first time before Judge Pohl. Perry echoes General Baker’s two-option analysis and then rejects the government’s third option in rather lurid terms:

There is no third option. Your Honor would be creating a third option that has never existed before…It would be inappropriate for you to advise him that they have that right and ability because that right and ability does not exist. It would be a fundamental error of law that would be a complete creation by this court.

Perry then insists that, despite the current friction between the defense team and Bin Attash, the defense team is still providing “effective representation,” and concludes by urging Judge Pohl to resolve the issue immediately.

Judge Pohl brings Bin Attash up to speed with how he views the current situation: Bin Attash must, at minimum, retain Bormann and Seeger, but he can excuse Schwartz as long as he understands that doing so would be unwise, as the trial will proceed without delay and as he may not be granted a replacement. Bin Attash accepts the situation but still wants Schwartz out; he considers “the harm I’m enduring with the presence of the lawyers” to be “greater than the harm I may endure without.”

Judge Pohl asks Ryan if Bin Attash’s answer changes anything. Ryan confirms that it does not. Bin Attash then interjects that his problem with Bormann remains unresolved. In response, we break for lunch, during which Judge Pohl wants Bin Attash to consider whether he is asking to excuse Bormann and Schwartz with or without replacement.

After lunch, we resume with Bin Attash’s answer to Judge Pohl’s question: he would prefer to find replacements for Bormann and Schwartz, though he accepts that a replacement may not come and, even if it does, it will not delay the trial.

At this point Judge Pohl asks if any of the other defense teams want the opportunity to be heard on the issue. David Nevin, an attorney for Mohammed, declines. James Harrington, an attorney for Binalshibh, falls briefly down Rule 505’s rabbit hole, arguing that the wording of the rule signals the necessity of good cause. James Connell, an attorney for al Baluchi, makes a rather broad statement—his team’s position “aligns with virtually all of the parties in some extent and disagrees with them in all extent”—and then points to the Sixth Amendment’s binary nature to reject the government’s waiver idea. In his reading, the Sixth Amendment grants both a right to have counsel and a right not to have counsel, but there is no third option. The accused cannot whittle down his defense team until it is ineffective. Connell suggests that he understands the government’s argument. After all, its position would “create a very careful category where Mr. Bin Attash could basically eviscerate his lawyers --- his legal team but still have it be minimally legally sufficient.” It makes sense “strategically,” but “legally it doesn’t make sense as a position.”

Ruiz, an attorney for Hawsawi, declines to comment, as does Perry.

General Baker then admits that “we’re at the point where we’re beating a dead horse” with Rule 505, but decides to keep beating the dead horse anyways, arguing again for the requirement of good cause, explaining once again that once an attorney-client relationship has been established, the accused must show good cause to dismiss his counsel.

Trial Counsel Ryan is given last word and defends the government’s waiver option, arguing that circumstances exist even in a pro se case in which certain discretion can be given to the judge to have learned counsel “who had been on the case for four or five years” to remain on the case as standby counsel.

Judge Pohl agrees with the defense that Bin Attash deserves an immediate answer. He cites Florida v. Bostick, a removal case and not a replacement case, in which the defendant was required to bear “the burden of showing good cause to replace appointed counsel.” Whether Bin Attash’s case is a replacement or a removal case—he admits he believes it is a replacement case—matters little, he reasons, since Bin Attash fails to demonstrate good cause for Schwartz’s dismissal. As such, Judge Pohl denies the government’s motion to allow Bin Attash’s to dismiss Schwartz and breaks for early recess so as to give Bin Attash the opportunity to decide whether he wants to accept his current defense team or represent himself.

David Hopen is a national security intern at Lawfare. He is a rising senior at Yale University, where he majors in English Literature.

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