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This Week at the Military Commissions, 1/25 Session: The "Broken Arm" Edition

Nora Ellingsen
Friday, January 27, 2017, 10:03 AM

The first 9/11 hearings under the Trump administration lurched forward at Guantanamo on Wednesday, but barely lasted the morning before all public sessions were suspended until March.

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The first 9/11 hearings under the Trump administration lurched forward at Guantanamo on Wednesday, but barely lasted the morning before all public sessions were suspended until March.

With military judge Colonel James Pohl presiding over the military commission, the normal cast of characters was in attendance, including all five defendants. However, the absence of one attorney, Cheryl Bormann, dominates the commission’s discussion for the entirety of the morning.

Bormann, Walid bin Attash’s attorney since 2010, broke her arm on Saturday and was unable to travel to Guantanamo for the open session Wednesday morning. The defense team submitted a motion for a continuance Saturday night, but Judge Pohl decided to summon the relevant players down to Guantanamo so he could hear oral arguments on the continuance request and determine whether the commission could hold the scheduled eight days of sessions in Bormann’s absence.

Although an additional three attorneys representing bin Attash are present on Wednesday, Bormann is the only lawyer on the team who is specially trained for capital cases—known as learned counsel. Edwin Perry, another bin Attash attorney, argues that the proceedings—which included motions, a deposition of a family member of 9/11 victims, and a 505(h) hearing (a chambers meeting between the judge and lawyers to map out the public sessions)—cannot continue without the presence of learned counsel. His client, he argues, cannot waive his right to counsel for the hearings, because he doesn’t have adequate counsel present to begin with.

Somewhat complicating the argument is the fact that bin Attash has been vocal about his dislike of Bormann in the past, regularly requesting that she be replaced. However, Perry argues, the defendant has also always been consistent in his request for learned counsel, and has never attempted to waive that right. Perry goes so far as to argue that if Judge Pohl allows bin Attash to waive Bormann’s presence in this week’s hearings, that ruling would be tantamount to allowing bin Attash to pick and choose his counsel—a move Judge Pohl has specifically disallowed in the past.

Judge Pohl then questions Perry as to bin Attash’s preference on the issue of Bormann’s absence. Perry replies that bin Attash has always requested learned counsel, but Judge Pohl pushes further, asking Perry to answer his actual question: “What I’m asking is: Has he said whether or not he will waive Ms. Bormann’s presence for these hearings, that’s it.” Perry has not directly had a conversation with his client about the issue (bin Attash currently isn’t speaking to his lawyers), but suspects he would probably want to replace Bormann. However, he doesn’t want Judge Pohl to speak directly with bin Attash, and again reiterates that bin Attash’s dislike of Bormann should not be conflated with his desire to have learned counsel present.

Next, Jay Connell, learned counsel for Ammar al Baluchi, warns Judge Pohl that allowing bin Attash to waive learned counsel would be, “setting a very poor precedent.” Scheduling matters, he argues, are up to the attorneys, and do not need to be cleared with the accused. Connell also doesn’t want Judge Pohl to go direct with the defendant on this matter. Pohl agrees that he usually tries to avoid this stepping in between counsel and their clients, but is struggling in this case to get any solid answers from the officers on the court as to whether or not bin Attash has waived Bormann’s presence.

Judge Pohl next tries to drill down on whether Connell thinks it’s necessary to have learned counsel present for the deposition and 505(h) hearing, in addition to the motion, or if there’s any difference between the three. Not surprisingly, Connell thinks it’s important to have learned counsel present at all three.

Next we hear from David Nevin, Khalid Sheikh Mohammed’s attorney. Like the defense attorneys before him, Nevin warns that the commission should not confuse bin Attash’s personal dislike of Bormann with a desire not to have learned counsel present. Pohl questions Nevin about the deposition, saying that even if he allows the prosecution to go ahead with the deposition, the prosecution runs the risk of it being excluded later. But Nevin argues that the situation is more complicated—without Bormann present at the deposition, bin Attash may miss out on the opportunity “to have developed affirmatively useful evidence to him in the course of that deposition.” The same, he argues, applies to the motions and the 505(h) hearing.

The final member of the defense team to speak on this topic is Jim Harrington, Ramzi Binalshibh’s attorney. Harrington briefly brings up a new point: bin Attash’s three non-learned counsel may be put in an ethically compromising situation when they are forced to act as non-capitally qualified counsel.

Finally the government speaks. Prosecutor Ed Ryan’s argument is slightly more succinct:

Khallad bin Attash is represented by three lawyers. They’re sitting in this room right now. They’re all qualified to be here. They’re all called to act as his defense counsel. They all have been acting as his defense counsel for, at least in the case of Mr. Schwartz, five years now. They’re here and they’re ready to go.

Ryan then focuses on the importance of moving forward with the deposition testimony of Lee Hanson. Ryan stresses that the trip down to Guantanamo was hard on the 84 year old and he finds it “urgent” that the deposition be allowed to move forward this week. Hanson’s son, daughter and granddaughter were all on United Airlines Flight 175, which was flown into the South Tower, and he has come to testify, “very plainly, that he watched on television as his family was murdered.”

Ryan asks Judge Pohl to consider Hanson’s age and health, saying that the government cannot reasonably ask the man to make that trip again. Ryan argues that a remedy can be fashioned later on down the road, if Bormann’s presence is proved to be indispensable—the government is willing to take the risk that the deposition wouldn’t be admissible in the future, but still finds it imperative that it is taken this week.

The commission takes a 15-minute recess before it returns to the issue. Perry is back at it again, reminding the commission that the presence of learned counsel is required in case anyone forgot during the brief recess. For a bit, Judge Pohl tries to parse out the defense team’s ability to represent bin Attash absent a death-penalty specific issue, but finally he just warns the team that they had better be prepared to represent their client when the commission reconvenes in March. Connell and Ryan both speak again, somewhat rephrasing their earlier arguments, and Judge Pohl decides to rule without speaking to bin Attash directly—to the relief of the defense counsel.

Judge Pohl rules that the continuance will be granted with respect to the motions, but denied with respect to the 505(h) hearings and deposition, which will go forward on Thursday and Friday of this week.

Judge Pohl then notifies the five defendants in the courtroom that they can watch the deposition on Friday, or waive their right to be present. Bin Attash asks to say something to the Judge and rattles off his usual lists of complaints: his lawyers are working against him, they are causing him “a lot of psychological problems,” and perhaps most notably, he believes that we will in the future find out that some of them work for the CIA.

The final item on the agenda is determining whether the victim family members can attend Hanson’s deposition. The defense team argues that the case would inevitably be tainted by the potential pretrial publicity, while Ryan reminds Judge Pohl of how much the families have already suffered at the hands of the five defendants. Ultimately, Judge Pohl decides, after a brief recess, that the families won’t be allowed to attend.

With that, the commission is in recess until March, at which point hopefully everyone required will be present and prepared.

Nora Ellingsen is a third-year student at Harvard Law School. Prior to graduate school, she spent five years working for the FBI's Counterterrorism Division. She graduated cum laude from Northwestern University with a B.A. in Psychology and Political Science.

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