Saying he was not persuaded by an apparent airing of grievances during a closed hearing, the Army judge in the Sept. 11 terror trial on Thursday refused to let an accused terrorist fire his Pentagon-paid lawyer.
Moreover, the judge, Army Col. James L. Pohl, sealed a transcript of a 25-minute meeting he held with accused 9/11 plotter Walid bin Attash and his defense team on Wednesday — denying the public a window into what prompted the Yemeni to try to fire veteran Chicago death-penalty defender Cheryl Bormann.
Pohl sought to settle the matter by advising Bin Attash that, as the accused facing a capital trial, his legal team had to do what he wanted, including not filing legal motions if he forbade it: “Ultimately it’s your defense — and in this case it is your life — so ultimately you are the decision maker.”
But the instruction only stirred a new controversy at the war court created to hold a mass murder trial for the five men accused of orchestrating the Sept. 11, 2001 terror attacks: At least two civilian U.S. defense attorneys objected to Pohl’s advice, arguing that lawyers have an independent responsibility to file legal motions, in some instances over a captive’s opposition.
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A death-penalty defendant gets to decide whether he will testify and other, certain narrow trial issues. But — unless the alleged criminal functions as his own lawyer — defense attorneys believe they have a duty to conduct a case in the best interests of their client. Moreover, at the war court, the defense attorneys get to see classified evidence that the captives cannot.
Bin Attash pointedly asked if he, as captive, had the authority and mechanism to prevent Bormann and co-defense attorney Air Force Maj. Michael Schwartz from filing certain legal motions. The judge backpedaled from his initial advice, calling it “a complicated legal issue” with no “simple yes or no answer” and instructed attorneys to research the question — and file a motion.
In another court decision, the judge refused a request by some defense lawyers to halt the proceedings over senior Pentagon officials’ open criticism of Pohl’s nine-month-old ban on female guards touching the five alleged 9/11 conspirators as they move them to and from court and legal meetings.
Tuesday, Secretary of Defense Ash Carter and Marine Gen. Joseph Dunford Jr., chairman of the joint chiefs of staff, both called Pohl’s temporary restraining order on a religious accommodation question “outrageous,” echoing an earlier remark by Marine Gen. John Kelly, who supervises Guantánamo prison operations from the Southern Command.
Marine Maj. Derek Poteet, appointed by the Pentagon to defend alleged mastermind Khalid Sheik Mohammed, called the comments “unlawful command influence.” He argued they could contaminate Pohl’s hearing testimony this week from officers on why the prison needs female guards handling the captives.
The judge replied that he was unaware of the comments by the top Pentagon brass until defense lawyers filed the emergency motion to abate. He instructed the chief prosecutor, Army Brig. Gen. Mark Martins, to have three officers from the detention center on standby for possible testimony on Friday morning.
Separately, the judge reminded attorneys that he knew some guards he presumed to be female had filed a gender discrimination complaint against him over the no-touch order. But he said he had heard nothing of what became of them.