An effort to restart the Sept. 11 pretrial hearings abruptly snagged Monday morning after an accused terrorist — whose lawyer says he was tortured by the CIA — asked whether he could represent himself in place of his Pentagon-paid death penalty defender.
“We have so many problems in the camp that take precedence over what is happening in the court. We are still in the black sites,” accused terrorist Walid Bin Attash declared before the judge, Army Col. James Pohl, cut him off.
At issue, according to Bin Attash defender Cheryl Bormann, is the Yemeni’s lack of trust in the independence of the system, including his attorneys, in light of a series of episodes at the war court and his secret circumstances of detention. When the court last convened, in February, he and three other 9/11 defendants said they recognized an Arabic-English linguist assigned to a defense team as a former CIA asset at a secret prison, called a “black site.” His mother recently died in Saudi Arabia, according to his attorneys, before the prison arranged a monitored video call with her.
He is one of five men accused of orchestrating, financing and training the men who hijacked four aircraft and killed nearly 3,000 people at the World Trade Center, Pentagon and a Pennsylvania field on Sept. 11, 2001. They could face military execution if they are convicted.
The judge grappled with how to explain the pros and cons of self-representation to the captive, whose lawyers can see classified evidence in the case but he can’t. “In a normal case,” Pohl said, a defendant who represents himself would get access to the Internet and other accommodations.
The chief prosecutor, Army Brig. Gen. Mark Martins, reminded that this is “a national security case.” The accused “have right to counsel if they want it ... not to a high-end computer, ability to pick up the phone.”
He suggested that Pohl read aloud from a military judge handbook to explain to Bin Attash how self-representation works — something another judge did in an earlier version of the court, during the Bush administration.
A Senate Intelligence Committee investigation of the black sites, known as The Torture Report, describes Bin Attash being left nude, slapped, doused with water, forced into a wall and threatened with rectal rehydration during his 2003-06 CIA detention. He lost a leg in a 1997 battlefield accident in Afghanistan and, the report says, he was subjected to 70 hours of standing sleep deprivation that caused his remaining limb to swell.
Bormann, who describes her client as a former child soldier, says Bin Attash considers his current military detention at Guantánamo’s secret Camp 7 to be a continuation of his “psychological torture.” He “doesn’t believe that anything he is doing right now is voluntary,” she said.
The remark prompted the judge to wonder aloud if the issue might devolve into a question of Bin Attash’s competency to mount a defense. The court session lasted 58 minutes, before the judge recessed until Tuesday morning to let the lawyers on both sides offer opinions on the way forward.
Bin Attash, born in 1978, is the youngest of the five men awaiting capital trial as alleged conspirators in the worst terrorist attack on U.S. soil. His brother, Hassan, born in 1986, is also held at Guantánamo, but in the portion of the prison for the majority of the 114 war-on-terror captives. The brothers have never seen each other here, their lawyers say.
The other four defendants are the alleged plot mastermind, Khalid Sheik Mohammed, 50; his nephew Ammar al Baluchi, 37; Ramzi bin al Shibh, 43; and Mustafa al Hawsawi, 47. All five for a time functioned as their own attorneys during the Bush years, got to meet to discuss strategy and were issued non-networked laptop computers loaded with unclassified evidence against them, video-editing and word-processing programs for trial preparation.
President Barack Obama canceled that trial and subsequently worked with Congress to tweak the war court. One change granted them Pentagon-paid defense attorneys who specialize in death penalty defense work but gave them the option of defending themselves with the lawyers functioning as stand-by counsel.
The case had already been fundamentally stalled for 18 months because the FBI was investigating bin al Shibh’s defense team — creating a possible ethical dilemma of whether the team could effectively defend the man, or be too concerned for themselves.
A recent Justice Department filing declared the investigation over — “at this time” — with nobody charged with any crime, according to several lawyers who have seen the document.
So one of the first issues the judge was expected to take up Monday morning is whether the FBI investigation presented a conflict that means bin al Shibh could or should fire his death penalty defender, Jim Harrington.
All five alleged conspirators were in court Monday — three of them in paramilitary attire — for the first day of what was intended to be a 10-day hearing.
Other issues on the judge’s 40-item agenda include a question of whether detainees can invoke a religious exception on being physically touched by female guards to and from court and legal meetings, something they say they were granted for years, and how the former CIA translator ended up assigned as bin al Shibh’s personal in-court translator.
The last item on the two-week agenda involves the alleged mastermind’s bid to use the U.S. Postal Service to mail an unclassified letter to Obama. Mohammed wrote the president last summer but has been thwarted by both the prison and the prosecution in his bid to get it delivered.
The Pentagon prosecutor’s office brought nine victims of the Sept. 11 attacks to the court to watch the proceedings. One was in a hotel at the World Trade Center complex at the time of the attacks.
An earlier version of this story said that two of the defendants had asked about self representation. In fact, only one did. A second asked about the right to be present, or waive attendance.
Verbatim | War court statement
“The military commissions for the 9/11 KSM hearing recessed this morning until Tuesday, 20 Oct at 9:00 a.m. EDT in order for the defense and prosecution to review the government’s recommended admonition to Walid bin Attash regarding self-representation. That recommendation is the standard one provided to accused service members under the Uniform Code of Military Justice, with slight modifications to account for specific aspects of the Military Commissions Act and legal proceedings at Guantanamo.
“As with defendants in civilian and other military trials, an accused before a military commission has a right to proceed pro se (i.e., by serving as his own lawyer), but this election must be knowing, voluntary, and intelligent, and courts of law only grant an accused pro se representation following a discussion (colloquy) that ensures the accused is informed of the consequences of representing himself and the judge has an opportunity to evaluate the accused’s awareness and willfulness in making the decision. The judge also directed that the defense counsel for Walid bin Attash needs to explain these aspects to her client before the session tomorrow.”
▪ Navy Cmdr. Gary Ross, spokesman, Office of Military Commissions