The 9/11 trial judge decided Sunday to go forward with the case’s first pretrial hearing of the year at Guantánamo despite the absence of a death-penalty defense attorney who called in sick due to a medical emergency.
Chicago attorney Cheryl Bormann, the so-called learned counsel for alleged Sept. 11 plot deputy Walid bin Attash, broke her arm in two places in a fall in Washington, D.C., over the weekend and returned home to consult a surgeon about reconstructive surgery, said co-counsel Michael Schwartz.
At issue is whether the judge, Army Col. James L. Pohl, can hold a hearing at the remote base in Cuba with one of the death-penalty defenders missing. Each of the five men accused of the plot that killed nearly 3,000 people has a criminal defense lawyer with expertise in capital defense, a learned counsel, and Pohl has in the past postponed court when one was too ill to attend.
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The Pentagon was mounting a war court shuttle to the base on Monday for the first session of the Trump administration — eight days of pretrial arguments in preparation for the mass-murder trial that has no start date. On Saturday, after the accident, the Bin Attash team asked for a delay, known as a continuance, which the judge rejected Sunday afternoon.
At least one closed court session may occur as prosecutors create a video record of testimony from a man whose son, daughter-in-law and 2-year-old granddaughter were killed when terrorists crashed United Flight 175 into the World Trade Center on Sept. 11, 2001. Pohl has agreed to a prosecution request that the accused plotters and their lawyers attend the deposition from Lee Hanson, but has rejected a bid by the media to open the court to the public.
Defense lawyers openly questioned whether the court could conduct any business because, under the law Congress created for the post- 9/11 military tribunals, each of the accused is entitled to his own capital defender. In the event one chose to represent himself, Pohl has indicated that he would keep a learned counsel on standby in case the defendant proves unable to adequately defend himself.
Pohl’s conundrum put in sharp relief a 13-month-old request by the chief defense counsel, Marine Brig. Gen. John Baker, for additional Pentagon funding to hire four extra learned counsel to double-up on the teams of some of the Guantánamo death-penalty defendants.
“Death penalty cases have a different standard for criminal defense attorneys to meet to ensure their clients have effective assistance of counsel,” Baker told a national security conference in September. “Accused facing the death penalty are required to be represented by counsel learned in the field of capital litigation with significant experience trying death penalty cases. Each accused in the military commissions currently has once such attorney, but cases of this size, scope, and complexity require more than that.”
The issue is particularly complicated in the case of Bin Attash, who is accused of being a deputy in the plot allegedly hatched by lead defendant Khalid Sheik Mohammed. The former CIA captive has been trying for more than a year to fire Bormann and Schwartz, a civilian who started on the case as a U.S. Air Force officer.
Bin Attash wants them replaced with other unspecified Pentagon-paid attorneys — something that Pohl has rejected.
This summer Bin Attash wrote the judge, “My defense team works for their personal benefit not mine,” and that “I distrust them.”