A military judge ruled Monday that a lawsuit brought by a former death-penalty expert on a 9/11 trial defense team could not derail progress in the Sept. 11 case and ordered defense attorneys to continue representing alleged plot deputy Walid Bin Attash.
The issue, a bit murky because the civil suit is under seal at a U.S. District Court in Illinois, had threatened to halt this week’s 23rd pretrial hearing in the case against five men accused of orchestrating the attacks that killed 2,976 people on Sept. 11, 2001.
Instead, Army Col. Judge James L. Pohl ruled that the civil suit by “a fired former mitigation specialist” currently offers “zero impediment” to Bin Attash’s defense team. In capital cases, a mitigation expert helps develop a profile of the person on trial to argue against a death sentence, in case of conviction.
The episode was the latest installment in the long-running feud between Bin Attash, the Yemeni who allegedly ran an al Qaida camp where two of the Sept. 11 hijackers were trained, and his Pentagon-paid, death-penalty defender, Cheryl Bormann, whom he has repeatedly tried to fire.
To rule, Pohl met in secret with Bin Attash and his legal team and posed a series of hypothetical questions to the case prosecutor, including:
▪ What if Bin Attash wants to side with the fired mitigation expert in his suit?
▪ Does he need an independent defense counsel to advise him on the lawsuit?
Prosecutor Ed Ryan said no new counsel was necessary, and offered that Bormann and her team could advise Bin Attash on the nature of the sealed lawsuit filed against them by former mitigation expert Tim Semmerling.
Ryan also questioned whether a detainee from Guantánamo Bay could actually be a witness in a U.S. civil suit. He told the judge that the pretrial hearings should continue with Bormann and her team representing Bin Attash.
Left unsaid is that the Yemeni for more than a year banished his legal team to the back of the court and does not talk with them.
One by one, three lawyers named in the suit — Bormann, Army Maj. Matt Seeger, civilian Edwin Perry — asked to be relieved of their defense duties, citing their sense of a looming conflict of interest. Bin Attash’s fourth attorney, Air Force Capt. Brian Brady, not being sued, said he consulted the Florida Bar, where he’s licensed, and similarly believed he had an ethical issue. Bormann earlier said he could be a witness in the civil suit.
“I’m conflicted. I cannot begin to give fair advice,” Bormann told the judge, who as always wore an austere black cloak and headscarf to court. “Mr. Bin Attash is entitled to fair and full advice.”
The suit, she added, has “at the very least put a chill in the defense counsel sitting in the back row.”
Relatives of six people killed in the terrorist attacks watched the proceedings from behind a partially drawn privacy curtain that separated them from other observers. They have declined to take questions from reporters here. This week, they included the widower and daughter of New York City police officer Moira Smith, whose service is immortalized in a photo of her leading a bloodied businessman to safety before perishing in the attack, the only female New York City police officer killed on Sept. 11.
Little is known about the lawsuit brought by Semmerling, who left the 9/11 case in October 2015. Pohl said it alleges defamation of character and intentional infliction of emotional distress. Neither Semmerling nor his attorney responded to requests for comment.
Semmerling for a time served as a mitigation expert in the capital-punishment case of Army Maj. Nidal Hasan, found guilty of killing 13 people in a Nov. 5, 2009, shooting spree at Fort Hood, Texas, something Ryan mentioned in court. Hasan is on the military’s Death Row at Fort Leavenworth, Kansas.
Separately, Bin Attash asked Pohl to release a sealed letter he sent the judge in January 2015 and asked for the return of retired Navy Lt. Cmdr. James Hatcher, who was his lawyer for a time and most recently a case analyst.
Hatcher said by email Monday that he was removed from the team in November. Then last week, he said, the Chief Defense Counsel, Marine Brig. Gen. John Baker, fired him “for sharing the subject lawsuit document with other 9/11 teams.” Hatcher declared the situation “very frustrating” because he knew that Bin Attash wanted him reinstated as a case lawyer.
In other court activity Monday:
▪ Defense lawyers for two of the accused terrorists argued that the United States was not at war at the time of the Sept. 11 attacks, and that therefore the case was not subject to the war court Congress created to try the alleged 9/11 conspirators. They asked Pohl to dismiss the case.
▪ Guards brought two of the five defendants, alleged mastermind Khalid Sheik Mohammed and Bin Attash, to court about 30 minutes before the hearing. Both spread out prayer rugs inside the court while guards and attorneys were getting ready and prayed behind their defense tables.
▪ A man attired in a New York City Fire Department uniform sat in the court spectators’ section, apart from the Sept. 11 families. The Smiths, father and daughter, at one point peered through the court’s triple pane glass to stare at the accused, including Mohammed, who was attired in a white turban, tunic and trousers, topped by a jungle camouflage hunting jacket.
▪ Prosecutor Ryan said a still unreleased court filing by the Bin Attash team described a “limited joint defense agreement” among defense attorneys. He asked that the prosecution be provided a copy of it, with redactions as necessary, or give a copy to the judge to evaluate with an eye to professional rules of ethics.