A Sept. 11 case pretrial hearing meant to delve into CIA black-site issues was derailed Tuesday by an accused terrorist’s continuing bid to to fire his legally-mandated death-penalty defender.
“The problem is the attorneys have become the enemy,” alleged Sept. 11 plot deputy Walid bin Attash told the judge, Army Col. James L. Pohl. He doubled down on an earlier request to fire learned counsel Cheryl Bormann by also seeking to dismiss Michael Schwartz, an Air Force major who recently resigned his commission to continue defending bin Attash.
One issue in the ruptured relationship, according to bin Attash, was a recent court filing by his attorneys that the Yemeni said included lies and misleading information. He sought to write directly to the judge, who was reluctant to read anything but formal legal filings. But, at the recommendation of case prosecutor Ed Ryan, Pohl recessed after 78 minutes to get the letters translated and map a way forward. The hearing could resume Wednesday.
Bin Attash, in his mid-30s, is the youngest of the five defendants and is accused of training some of the 9/11 hijackers. He lost a leg in a 1997 battlefield accident in Afghanistan. He also tried to fire his lawyers last year following the death of his mother.
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Bin Attash’s bid to fire Bormann is complicated by the reformed Military Commissions Act, which requires each capital defendant to have a death-penalty-qualified defense lawyer on his team.
Bormann, a Chicago attorney who wears a black cloak and head scarf to court in consideration of her client’s customs, has represented him since the May 2012 arraignment as an alleged architect of the terror attacks that killed nearly 3,000 people in New York, Pennsylvania and at the Pentagon. Pohl had already said that, if bin Attash were allowed to fire the entire team, he would retain Bormann as standby counsel. Bringing in a new learned counsel could delay even longer the preparation for the trial that has no date.
This week’s hearing was meant to focus on how to handle what could be millions of pages of evidence from the CIA’s black sites, where the defense lawyers say the alleged terrorists were tortured.
Pohl had initially declared himself reluctant to enter the attorney-client conflict. He urged the captive to instead file motions through his lawyers. But bin Attash said he no longer trusted them. There’s a new military attorney on the case, Army Maj. Matthew Seeger, but he just met bin Attash this week.
Based on court discussion, bin Attash wasn’t seeking to defend himself, only to dismiss the civilians. Seeger told Pohl that the defense attorneys were united in their strategy and that he wouldn’t file a motion to fire Bormann and Schwartz if it were “not in the client’s best interest.”
“These are Schwartz’s and Cheryl’s laws,” bin Attash said. “He is under their control. I cannot deal with them.”
The other four accused 9/11 plotters sat quietly in court throughout the exchange, the alleged mastermind, Khalid Sheik Mohammed, forgoing paramilitary attire for a traditional white tunic topped by a black-and-white-checked keffiyeh and red-checked turban. Bin Attash sat at the defense table behind him, with an interpreter and paralegal but no attorneys. Bormann, Schwartz and Seeger all sat at an empty table at the rear of the court.
The conflict follows Pohl’s Oct. 29 effort to advise bin Attash that he has veto power over legal motions, something he said in court and then retracted. Lawyer Jay Connell, the defense attorney for Mohammed’s nephew, Ammar al Baluchi, waded into the thicket and advised the judge Tuesday that defense attorneys have a duty to file the motions they think best serve their client’s interest.
But Pohl responded that a death-penalty defendant can decide “The Big Five.” Those are generally described as what pleas to enter, whether to accept a plea agreement, whether to testify at trial, whether to defend himself and whether to speak at sentencing.
In other news, earlier in the 78-minute session:
▪ Judge Pohl disclosed that he had held a 45-minute closed hearing with Sept. 11 trial prosecutors on Monday, when there was no court scheduled because of Presidents’ Day. The alleged terrorists and their lawyers were excluded.
The law provides for such ex-parte sessions, which had a court reporter creating a transcript. Defense lawyers objected, invoking Constitutional protections and the lack of prior notice. Pohl said the prosecution proposed the closed session, and did not describe what was discussed.
Mohammed attorney David Nevin told the judge that the closed hearing failed “to follow the process to the letter” and “has a cruel and unusual punishment application as well.”
Read more at the Miami Herald’s Sept. 11 Trial Guide here for details on the charges and case participants.