Guantánamo

New question burdens 9/11 trial: Can death-penalty case proceed without capital defender?

Left to right: Mustafa al Hawsawi, Ammar al Baluchi, Ramzi bin al Shibh, Walid Bin Attash and Khalik Sheik Mohammad, pray at their Guantánamo war court arraignment Saturday, May 5, 2012. Sketch reviewed and approved for release by a U.S. military security official.
Left to right: Mustafa al Hawsawi, Ammar al Baluchi, Ramzi bin al Shibh, Walid Bin Attash and Khalik Sheik Mohammad, pray at their Guantánamo war court arraignment Saturday, May 5, 2012. Sketch reviewed and approved for release by a U.S. military security official. JANET HAMLIN, SKETCH ARTIST

War court prosecutors argued for the first time Wednesday that a 9/11 defendant could fire his death-penalty defender and go forward with the capital case with only a military attorney representing him.

Army Col. James L. Pohl, the judge, appeared to sidestep the question and ruled instead that alleged Sept. 11 plot deputy Walid Bin Attash didn’t have good cause to fire his seasoned criminal defense lawyer, Cheryl Bormann. The two haven’t spoken since February.

Moreover, Pohl gave Bin Attash a stark choice and a night to sleep on it before returning to court Thursday: Keep your four-lawyer Pentagon-paid defense team or elect to represent yourself.

So-called pro-se representation is not certain. If Bin Attash tries to invoke the option, Pohl has a 21-page script ready that cautions there are “difficulties and dangers of self-representation.” The judge would use it to question the youngest of the five alleged Sept. 11 plotters on whether he is competent to serve as his own attorney in a national security setting where an accused terrorist cannot see all the evidence against him.

Bin Attash’s unhappiness with his attorneys has been, as Pohl put it, “festering” for months.

In October, Bin Attash asked how self-representation would work, a question that paralyzed the court for a week while the script was written and translated. He asked to fire Bormann, a Chicago death penalty defender who dons a severe black abaya in court in deference to her client’s Muslim sensibilities. Pohl met alone with the alleged terrorist and his lawyers, and denied the request.

Now Bin Attash also wants to fire another civilian on his team, former Air Force Maj. Michael Schwartz. He’s been on the case for four years. Last year, he resigned his commission to stay on it.

In an unusual move, the general in charge of providing resources to the defense teams, Marine Brig. Gen. John Baker, filed an amicus brief that argued a defendant cannot fire an individual lawyer if Baker decides it’s not in the captive’s best interest. Baker, who represents no detainee but has been meeting with Bin Attash, told the judge in court that there was no good cause to get rid of any of the four lawyers defending Bin Attash.

Both Schwartz and Bormann have been at every hearing since the case’s May 5, 2012 arraignment, which stretched across 13 hours in part because Bin Attash refused to waive the reading of the 88-page charge sheet.

Civilian defense attorney Edwin Perry and Army Maj. Matthew Seeger joined about a year ago. Wednesday, all four sat at the rear of the court, banished by Bin Attash from his defense table.

Baker said Bin Attash has two choices: “Go either pro se or elect to be represented by counsel.”

Prosecutor Ed Ryan argued Pohl had a third option: Let Bin Attash fire everyone on his team except his lone military defense counsel, Seeger.

Ryan said Bin Attash can waive certain counsel, including the statutorily mandated learned counsel, if the judge questions him and concludes that he does understand the ramifications. If he can’t pick and choose, Ryan said, a defendant “can be coerced into representing himself.”

“The prosecution do not care who his lawyers are,” said Ryan. “But it is incorrect and improper to say he has no vote on who his lawyers are.”

Bin Attash sits directly behind alleged mastermind Khalid Sheik Mohammed, the No. 2 position in court among the 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.

Carol Rosenberg: 305-376-3179, @carolrosenberg

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