Guantánamo war court grapples with how an ex-CIA ‘Black Site’ captive can be his own lawyer

U.S. Army military judge Col. James L. Pohl, shown in this July 7, 2005 file photo at Fort Hood, Texas, is the chief of the Guantánamo military commissions judiciary.
U.S. Army military judge Col. James L. Pohl, shown in this July 7, 2005 file photo at Fort Hood, Texas, is the chief of the Guantánamo military commissions judiciary. ASSOCIATED PRESS

Lawyers and the judge at the Sept. 11 trial haggled over the mechanics on Tuesday of how a former CIA captive kept virtually incommunicado could defend himself at the five-man death-penalty trial.

No date has been set for the trial of the alleged architect of the Sept. 11, 2001, terror attacks, Khalid Sheik Mohammed, and four alleged co-conspirators. The question arose Monday after an alleged plot deputy, Walid bin Attash, asked the judge how he would go about representing himself.

So on Tuesday, the attorneys and the judge, Army Col. James L. Pohl, were crafting a 24-page script for the judge to use that explains to the Yemeni captive how self-representation would work at the war court — which uses classified information a defendant can’t see and holds secret sessions a defendant can’t attend.

The script is loaded with warnings on how unwise it is for someone to act as their own attorney, according to several lawyers who saw it.

Based on discussion in court, 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.

For Mohammed, attorney David Nevin called the system that forbids U.S. defense lawyers from discussing secret case evidence with the people they represent “the live wire of this case.”

Defense attorneys call it a scheme, derived from the federal courts’ handling of cases involving classified information, that denies a defendant’s constitutional right to see the evidence against him. The prosecutor, Army Brig. Gen. Mark Martins, has said that while the case involves pretrial discovery the defendants cannot see, he intends to hold an open trial.

Attorney Jay Connell, defending Mohammed’s nephew, Ammar al Baluchi, recited a long list of prison conditions at Guantánamo’s secret Camp 7 that would challenge a captive’s ability to mount a competent trial defense — no privacy, no access to a law library, no Internet, guards going through privileged legal materials and a policy that defines historical material on the war on terrorism as forbidden contraband.

Also, he said, Guantánamo prison management uses a “controlled chaos strategy of changing the rules all the time” — something at odds with clear-headed criminal defense work — and, by policy, denies the captives “rehabilitation services for their torture.”

Attorney Cheryl Bormann said in court on Tuesday that included Bin Attash’s inability to get a guard to turn down the air conditioning on Monday in his cell at the war court compound, Camp Justice. The Yemeni’s cell was so cold, according to Bormann, Bin Attash suffered from hypothermia, recalling his CIA torture. The remark went unchallenged except by the judge who said that the military sometimes has trouble with temperature controls.

The prison, for its part, declined on Tuesday to respond to the description of conditions — or explain why it offers no rehabilitation program.

Bin Attash and the four others are 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. The prosecutor is seeking their execution if they are convicted.

All five men were held for three or four years in secret CIA prisons, called “Black Sites” — with no access to attorneys or the International Red Cross — until President George W. Bush ordered them brought to this remote U.S. Navy base in 2006 for trial. A Senate Intelligence Committee investigation of the Black Sites shows agents used manipulation of room temperature as well as cold water dousing, coupled with sleep deprivation, to enhance their interrogations.

For these hearings, the office of the prosecutor brought nine people to the court this week to observe as victims of the Sept. 11 attacks or the family of victims.

Carol Rosenberg: 305-376-3179, @carolrosenberg