Sept. 11 Gitmo trial judge decides conflict issue, hits new snag

Walid Bin Attash posing for the International Red Cross in 2012 in a photo released to his family by the Guantánamo detention center. Monday, he asked to function as his own attorney and hold a closed session on a matter of privilege.
Walid Bin Attash posing for the International Red Cross in 2012 in a photo released to his family by the Guantánamo detention center. Monday, he asked to function as his own attorney and hold a closed session on a matter of privilege. © Private

The 9/11 trial judge on Monday shut down a controversy that had burdened the case for 18 months, ruling a now-closed FBI investigation of defense lawyers presented no ethical conflict and briefly signaling that pretrial hearings could resume in earnest.

But within an hour, the judge, Army Col. James L. Pohl, encountered a new hurdle: Accused Sept. 11 plot deputy Walid bin Attash declared himself ready to discuss firing his attorney, Cheryl Bormann, and representing himself. Bormann, meantime, sent a confidential note to the judge seeking time to investigate a behind-the-scenes defense issue, and advise the Yemeni about it.

Bin Attash interjected, in Arabic, that he needed no more advice from Bormann. He asked for a “closed session” to discuss privileged information, involving “defense strategy” and said that the other 9/11 trial defense teams could attend.

The judge shut him down — and the hearing until Wednesday, at the earliest — with a caution to the captive that his request nonsensically “conflated three different legal principles” and demonstrated “why it’s a bad idea to represent yourself.”

It was not clear what Bormann was investigating. The seasoned Chicago-based death-penalty defender told the judge it relates to “team work product,” and an issue that came to a head Friday “that may eventually result in my withdrawal.” Separately, the Miami Herald has learned, Bormann recently fired a long-serving team consultant, who abruptly left the base last week.

Whether Bin Attash is allowed to serve as his own lawyer was just the latest issue to confront the judge in the on-again, off-again trial preparation. It had been largely stymied for a year and a half by the revelation that FBI agents were investigating members of the defense team of another alleged 9/11 conspirator, Ramzi bin al Shibh.

Bin Attash, Bin al Shibh and three other ex-CIA captives are accused of training, directing and providing financial and travel logistics to the 19 men who hijacked four airplanes on Sept. 11, 2001 — killing nearly 3,000 people at New York’s World Trade Center, the Pentagon and in a Pennsylvania field.

Pohl heard arguments Sunday and Monday from lawyers who wanted details of the FBI probe to decide, before the judge ruled on the potential conflict of interest, whether they had been ethically compromised. Instead, the judge agreed with a Department of Justice attorney, Fernando Campoamor-Sanchez, that because nobody was criminally charged in the investigation, no conflict exists.

In siding with the Justice Department lawyer, Pohl rejected the opinion of a military attorney assigned to study the issue on Bin al Shibh’s behalf, acting as an independent defense counsel. Air Force Lt. Col. Julie Pitvorec told the judge that because the Pentagon-paid defense team was under the cloud of a criminal investigation, and knew about it for much of the 18 months, they were inevitably concerned for themselves, creating at least an appearance of a conflict.

At issue, in part, was a phone call a team member made to Bin al Shibh’s brother conveying the captive’s wishes to his nephew to have a successful year in school. Other details were still under seal at the war court. Defense lawyers argued in court that they have a duty to keep family members informed. But federal agents were apparently suspicious of the call and whether it circumvented rules requiring lawyers to clear messages from the former CIA captives to anyone.

A case-in-point: The alleged mastermind of the 9/11 attacks, Khalid Sheik Mohammed, wrote President Barack Obama an 18-page letter from Guantánamo last summer. Prosecutors call it propaganda and argue in a court filing that the prison gets to decide whether his attorneys can mail it. Mohammed’s lawyers say the content is unclassified and are seeking Pohl’s permission to put U.S postage on it, and mail it to 1600 Pennsylvania Ave. The judge has not yet ruled.

It was not immediately clear what either Bin al Shibh or his death-penalty defender, Jim Harrington, would do. Pohl instructed Campoamor-Sanchez to provide Harrington with information about the investigation so he could consult with the captive. Harrington has said that, independently, he has to decide whether there’s a conflict that would require a decision by Bin al Shibh on whether to waive it, or dismiss him.

“I thought and represented to the judge that I believe there is a potential conflict and the judge should’ve advised him of his waiver rights,” said Harrington, adding that Pohl agreed to revisit the issue if Harrington found a reason in documents he’ll get from the U.S. government.

The ruling followed a week of both open and closed hearings on the self-representation issue. During that time, the judge crafted a caution-laden script to read to any 9/11 trial defendant who seeks to exercise the option of serving as a self-styled death-penalty defense attorney, which is permitted under the legislation that created Guantánamo’s war court.

Carol Rosenberg: 305-376-3179, @carolrosenberg