The first day of a two-week Sept. 11 pretrial hearing meant to tackle mostly defense attorneys’ requests hit a snag Monday over a secret filing to the trial judge by lawyers for alleged 9/11 plot deputy Walid Bin Attash.
Unusually, Army Col. James L. Pohl, the judge, ordered the prison not to bring the five accused plotters to court. Instead he met in closed session for just 21 minutes with prosecutors and lawyers for the alleged Sept. 11 conspirators only to adjourn to a new closed session on Tuesday.
The last time the hearings stalled in similar fashion was in October when Bin Attash, about 37, asked about how he could be his own lawyer at his death-penalty tribunal. Lawyers and the judge spent days crafting a so-called pro-se advisement — a 21-page script that cautions that there are “difficulties and dangers of self-representation.”
It also lays out what a defendant can and cannot do at the war court, where accused terrorists do not see as much evidence as the lawyers with top secret security clearances who represent them.
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Bin Attash is the youngest of the 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 has set no trial date.
Based on court discussions, self-representation would work this way: Bin Attash could call himself the lead lawyer, but he would be assigned a court-approved, American standby counsel with a security clearance to handle the secret parts, if the captive allows the standby counsel to do it.
When the issue arose in October, Bin Attash’s death-penalty defender, Cheryl Bormann, blamed 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. Last year, 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.” Also, Bin Attash’s mother died last year in Saudi Arabia, according to his attorneys, before the prison arranged a monitored video call with her.
He has yet to try to exercise his right to be his own lawyer. But he has tried to fire Bormann, something the judge has so far forbidden. In October, Pohl met with Bin Attash and his counsel in a closed session that excluded the other defendants and prosecutors from court.
More recently Bin Attash asked to fire a second civilian attorney on his team, a role not required by the war court rules. Former Air Force Maj. Michael Schwartz, the lawyer Bin Attash now wants gone, resigned his commission last year to stay with the case rather than be posted to a new Air Force assignment.
Lawyers came to the base last weekend expecting to argue a series of defense access questions — to evidence, experts, witnesses and whether the judge will gag them on publicly discussing unclassified information that the prosecution defines as “propaganda.”
Trial preparation is still in an early stage. Chief prosecutor Army Brig. Gen. Mark Martins’ 100-member team is still evaluating evidence, including what they read in the full Senate “Torture Report” on the CIA secret prison network that used brutal techniques on the five men. Defense lawyers don’t get to see it, and prosecutors decide what lawyers for the accused terrorists are entitled to see, and what goes to the judge for substitution.
Monday’s hearing was the first since May when some testimony focused on conditions of confinement.
See the self-representation colloquy the judge and lawyers crafted in October, here.