An alleged Sept. 11 plot deputy who rejects his lawyers got himself booted out the war court Thursday, averting a showdown over whether an alleged war criminal can ably defend himself at a Guantánamo death-penalty tribunal.
Walid Bin Attash, about 37, stood and shouted “no lawyer at my table!” as the judge, Army Col. James L. Pohl, entered court. Bin Attash’s four Pentagon-assigned attorneys were approaching to sit beside him.
Pohl ordered him to sit and be quiet. He wouldn’t. The alleged trainer of the 9/11 hijackers declared he didn’t want to come to court in the first place and accused the judge of creating problems. So Pohl had guards take him to a holding cell behind the court to watch and listen on a closed-circuit feed.
It was a contentious start to a contentious pretrial hearing for the five men accused of orchestrating the Sept. 11, 2001 terrorist attacks that killed 2,976 people.
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Some of the defense lawyers want Pohl to disqualify himself, chief prosecutor Brig. Gen. Mark Martins and his entire prosecution team from the death-penalty trial. In May, lawyers for alleged mastermind Khalid Sheik Mohammed accused the judge and prosecutors of colluding in the secret destruction of trial evidence. Prosecutors deny wrongdoing, call it “defense-manufactured nonsense.”
Pohl has yet to decide that question, but he ruled Thursday that he won’t outsource the decision to another military judge.
Mohammed’s attorney, David Nevin, said Pohl had issued a protective order, then later held “a secret meeting” with prosecutors to lift it and destroy something that was “among the most important evidence in this case.” Defense attorneys said they got notice 20 months later, denying them a chance to go to federal court to try to stop the “destruction or decommissioning of this evidence.”
No one said it explicitly, but a prosecution filing in support of its authority to do it, suggested the evidence was a black site. It included a May 7, 2012 federal judge’s order authorizing photography of a secret U.S.-controlled overseas prison where CIA captives were kept.
Nevin said the defense needed that evidence to reconstruct “Mr. Mohammed’s torture at the hands of the United States government” for mitigation purposes. That’s the portion of the case that would argue the U.S. has lost the moral authority to execute the man known as KSM, if he’s convicted. CIA agents waterboarded him and subjected him to sexual humiliation during his three years of secret custody.
Prosecutor Bob Swann replied that the law allows the prosecution, in concert with the judge, to create substitutions of evidence without participation of the defense attorneys. The standard, he said, is what is detrimental to national security.
“They find fault in our over-the-top patriotism,” he said, accusing the lawyers for Mohammed of “grandstanding” that he called “despicable.”
He urged the judge to decide the recusal motion, and summarily reject it. “There is no reason to recuse yourself. You have done nothing wrong, nor have we,” said Swann, one of the Sept. 11 case’s longest serving prosecutors.
Defense lawyers have it wrong, he also said. “The art of deduction is the craft of Sherlock Holmes. Mr. Nevin is not Sherlock Holmes.”
Pohl is the judge who presided at the courts martial of Army guards who abused Iraqi prisoners at Abu Ghraib. In that case, he imposed a preservation order on the prison that forbade the Bush administration from razing it.
In December 2013, Judge Pohl ordered the U.S. government to “ensure the preservation of any overseas detention facilities still within control of the United States unless otherwise ordered by this commission or other court of competent jurisdiction.”
One defense lawyer, Jay Connell, representing KSM’s nephew, told Pohl he didn’t for now want the judge to disqualify himself. First, he said, he wanted to question him on whether certain sealed portions of a no-name motions series had disappeared.
“I share the shock at the events which have transpired here. I did not want to believe them,” Connell said on the destruction of evidence question. “They are heartbreaking.”
Left unexplained Thursday in the Bin Attash episode was why he came to court in the first place.
Pohl, the judge, said he did not order him brought there. He said Bin Attash had signed a waiver that left open whether it was truly voluntary. Mohammed and fellow defendant Ramzi bin al Shibh told Pohl, after Bin Attash was removed from court, that guards at the secret Camp 7 prison said the judge had ordered his appearance.
It was not immediately known if guards had to forcibly remove Bin Attash from his cell at the secretive Camp 7 for the several-mile ride to the war court compound at Camp Justice. Or if anyone was hurt in the process.
“We don’t discuss operations,” said the prison camps spokesman, Navy Capt. John Filostrat, by email.
Bin Attash similarly resisted going to court at his May 5, 2012 arraignment, an episode his defense attorney blamed on military mistreatment. That time, troops wheeled him into the maximum-security courtroom in a prison restraint chair typically used for forced-feeding hunger strikers. He’s an amputee who lost his leg in a 1990s battlefield accident.
This week was not the first time that Bin Attash brought court proceedings to the precipice of a self-representation decision. In October and February he also rejected some of his lawyers. It is not guaranteed that Bin Attash would be allowed to serve as his own attorney.
The judge has a 21-page colloquy, a script of questions that require answers, to determine whether the captive is competent to handle a national security case that denies a defendant the right to attend all hearings and see the same evidence as his American lawyers do.