2/16 Session: The “My Lawyer is My Enemy” Edition

It’s a new year—the final one of the Obama administration—and we’re back at Guantanamo still working, as the Military Commission convened to try five of the 9/11 conspirators resumes pre-trial sessions.

You remember our rogue’s gallery of defendants—Khalid Sheikh Mohammed, Walid bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa al Hawsawi—stand accused of plotting the attacks of September 11th, which killed nearly 3,000 people.

Military Judge James Pohl, the man tasked with overseeing these proceedings, is back too, cloaked as always in his judicial robes. Judicial authority emanating from his very being, he gavels the session to order.

This week we’re finally going to get to work, polish off a bunch of motions and move the case towards trial.

But first, let’s kill the whole first day talking about Bin Attash’s bad relationship with his lawyers.

Judge Pohl, perhaps unaware that this is how things are going to roll today, outlines the day’s proceedings: first the court will account for the parties present, and as usual, he’ll advise the accused of their right not to be present.

Brigadier General Mark Martins accounts for the prosecution, letting us know that in addition to himself, Mr. Swann, Mr. Ryan, Mr. Trivett, Mr. Groharing, Ms. Tate, Ms. Tarin, and Captain Dykstra are all in the courtroom. Defense Counsel Nevin notes that all defense attorneys are also present, but that there was also an addition to the defense counsels who needs to be sworn in. Major Matthew Seeger introduces his credentials to the court, and he is promptly sworn in.

Judge Pohl then does as he promised, and advises the accused of their right to be present, and indeed, to not be present should they choose. It’s a speech they’ve heard before; all acknowledge that they understand.

But just as the proceedings are moving forward, Mr. Bin Attash has a question. He wants to know something about what has just been read. It seems, he wants to go back to camp “as soon as possible.” Can he leave at 10:30 am or does he really have to wait until lunch?

Judge Pohl tells Bin Attash that he needs to talk to him specifically later in the proceedings, but that if he really wants to head out, he can stay in the holding cell outside the courtroom until transportation back to camp can be arranged. Bin Attash asks if Judge Pohl can just order the guards to take him back now. He’s impatient to get back, it seems. He’s a busy man, after all.

After a long answer about what Judge Pohl can and cannot ask the guardforce to do, Mr. Bin Attash explains: “all I wanted is for the judge to tell the guard force that it is okay for me to leave and go to the camp. That’s all I am asking for.” Judge Pohl clarifies his comments, and tells Bin Attash that he can leave the courtroom whenever, if he so wishes. It’s just that the guardforce owns the vehicles, and it may take some time to get them outside.

Bin Attash understands. He says nothing further; apparently, he is not yet ready to leave the courtroom after all.

Pohl now pivots to the business of the day.

It seems he has had a 45-minute ex parte session with the government yesterday, which has been transcribed and will be attached to the record of trial. The session is duly acknowledged, and now defense counsel James Connell moves to add a few scheduling requests to the record. Mr. Connell also asks that a letter Bin Attash sent to Judge Pohl be added as an appellate exhibit.

Mr. Connell would also like to be heard as to his objections to not being notified of February 15th’s ex parte hearing with the prosecution. He contends that the exclusion is a violation of his client’s Fifth and Sixth Amendment rights. Connell suggests that “some sort of advance notice is necessary to allow the adverse party to object” and that prior to the hearing at issue, it had been the commission’s practice to grant notice of upcoming ex parte hearings. Defense Counsel David Nevin joins in Connell’s objection, and adds that in a capital case like this one, secret hearings also implicate the Eighth Amendment, “and the failure to follow the process to the letter has a cruel and unusual punishment application as well.” All other defense counsels also join with Mr. Connell’s objections.

Defense Counsel Walter Ruiz now rises. It seems his client, Mr. Al Hawasi, would also like to know just how long it would take for him to get back to camp, should he request to go. Judge Pohl tells Mr. Ruiz that he is happy to ask, just as soon as he receives an actual request from any of the accused to actually leave the courtroom.

Mr. Ruiz isn’t pleased with this answer. He’d like to know whether this is “a uniform issue that will always be the same or if it is something that changes”—you know, “for planning purposes.” Judge Pohl repeats his earlier position: he’ll ask the guardforce just as soon as Mr. Ruiz’s client asks to leave and no sooner.

Judge Pohl now turns back to Bin Attash, submitting a recent letter the defendant had written for the record. He covers some of the history of the issue in question, noting that back in October, he had denied Bin Attash’s request to relieve his defense counsel and represent himself pro se. This new letter, Pohl suggests, is something like a motion. But Bin Attash is not a lawyer, and as such, cannot file a motion in the court.

So he asks Bin Attash, since is unhappy with his counsel, Cheryl Bormann, if he is okay with Mr. Michael Schwartz staying on his case. Apparently not. Bin Attash tells Judge Pohl he actually wants Mr. Schwartz to “leave right now.” He cannot work with someone who, in his words, “cheats” him. Bin Attash doesn’t have a problem with Major Matthew Seeger, whom he only met with for the first time yesterday. But Major Seeger, Bin Attash notes, is “subjected to the same rules applied by JTF” and “has to have another person accompany him” when they meet.

Judge Pohl narrows his question: “Do you want Major Seeger as your attorney?” Bin Attash answers in the affirmative.

Judge Pohl pivots back to the letter. He says again that is it like a motion, but doesn’t have a legal analysis, and it is not the judge’s job to do the legal analysis for him. Bin Attash understands, but says the letter was meant as a “testimony” that would “correct the misleading information contained in the motions that were presented by the lawyers to the judge.” Bin Attash informs the court that he actually has another letter for the judge, but that he cannot give it to his lawyers because he does not trust that it would make it to Judge Pohl.

Judge Pohl once again explains the situation to Bin Attash. If he doesn’t trust any of his lawyers, that is a different conversation than if he trusts Major Seeger. If he trusts Major Seeger, he has to work through him. Bin Attash is unhappy with that response, pleading with the judge that he “must understand [his] situation.” He only met Major Seeger yesterday, he was not allowed to meet with him by himself, and Major Seeger is under the same restrictions as his other attorneys. In light of these circumstances, Bin Attash wants “the right to communicate with the judge directly.”

Judge Pohl informs Bin Attash that in any circumstance, Pohl himself has someone review the documents Bin Attash submits in order to insure that there is not something inappropriate in it. But as he has permitted before, if Bin Attash wants to submit something directly, he can. The only problem is that he cannot submit a legal filing that asks the judge for a form of relief that does not include a legal analysis. When the accused asks the judge to do certain things, that’s really a motion. And this particular motion focused on whether the judge would allow Bin Attash to dismiss Ms. Bormann and Mr. Schwartz. That is a legal issue, and it was discussed in October. And “there comes a point where if you’ve got lawyers, you have got to use lawyers.” If Bin Attash wants to represent himself, that is a different matter.

Bin Attash has another question: Does Judge Pohl think his lawyers, who have become his “opponents,” can achieve anything on his behalf?

“The problem is that the attorneys became the enemy,” he says.

How can he ask his attorneys to file complaints against themselves to the judge? How can he trust them? In this instance, he needs to be able to communicate with the judge and it is up to the judge to make the letter into a motion.

To this, Judge Pohl once more objects. He says, “that’s where there is confusion of roles.” It is not the judge’s job to do the attorney’s job. Judge Pohl cannot do his legal analysis for him. He cannot put Bin Attash’s complaints into a legal format and then later rule on whether or not his own analysis is correct.

Bin Attash understands. But he wants to know how he can communicate with the judge if his attorneys tell the judge lies. Does he “have the right to tell or inform the judge of these facts?”

Judge Pohl says that he doesn’t “generally deal with hypotheticals,” but that if there is a disagreement on a fact, he should initially discuss it with his attorneys. If he cannot do that, then there is a much bigger issue at play. The real issue then would be whether his attorneys were presenting the defense in a coherent manner. And that would touch on whether Bin Attash had good cause to dismiss his counsel. Otherwise, Bin Attash must work with his attorneys. If he cannot do so, then he must ask Major Seeger to make a motion to released Ms. Bormann.

Bin Attash interjects: “The attorney will not present a motion to fire themselves.”

Judge Pohl suggests that Major Seeger’s allegiance is to Bin Attash, not to the other attorneys. As long as the objection is not frivolous, he will write up the motion.

Bin Attash tells Judge Pohl that he tried to ask Seeger this morning, but that he could not talk to him. He suggests that Major Seeger is “afraid” of the other attorneys. Major Seeger had to have a third person present in the room. Bin Attash is upset now, he references his previous interrogations with the FBI and CIA.

“Stop, Mr. Bin Attash,” Judge Pohl says. He will not talk about “any side issue.”

He calls Major Seeger, who was seated in the back of the courtroom, to the front.

Judge Pohl asks him if he has a response to Bin Attash’s concerns. It seems that Bin Attash is correct; the “team has instituted a rule that no team member will meet with our client alone,” but that the purpose of that rule is to prevent potential “misunderstandings.”

Judge Pohl asks Major Seeger if that rule makes sense in an instance where Mr. Bin Attash would like him to file a motion to remove Ms. Bormann or Mr. Schwartz. Major Seeger believes it does. He suggests that the third person could be a paralegal or one of the analysts, and not necessarily other defense counsel.

Judge Pohl then asks Major Seeger what his role would be in putting together a motion to “terminate the relationship” with Ms. Bormann or Mr. Schwartz. Major Seeger says that he would be involved in reviewing the letter with the other attorneys, including Ms. Bormann and Mr. Schwartz, and “deciding on whether presentation of that letter to the commission would be in [Bin Attash’s] best interests.”

Judge Pohl now wants to know who decides what is in Bin Attash’s best interest. After all, Bin Attash has raised concerns that his attorneys would not advocate for their own “demise.”

Major Seeger suggests that if the relief Bin Attash seeks would not be in his best interest, his attorney should not request it.

Judge Pohl asks: “is that the law?”

Major Seeger isn’t sure at the moment. But he notes he “would certainly research the law and make an assessment of [his] duty in these circumstances.” Even so, his inclination is not to file a motion to dismiss the other defense counsel; he doesn’t think that would be in Bin Attash’s interests.

This bothers Judge Pohl. He asks the court: if the client's request is not frivolous, but the attorney still believes a motion would not be in the defendant's best interests, “who decides?”

Defense Counsel Connell, who is not one of Bin Attash’s attorneys, would like to be heard on the matter. Connell directs the court’s attention to AE 380AA, and notes that in Government of the Virgin Islands v. Weatherwax, it was determined that these kinds of issues are “under the control of the attorney and not under the control of the client.” Choosing whether to file a motion is a “tactical decision to be made by an attorney.”
Judge Pohl notes that there is a difference here though; in that case and almost all others in the case law, the attorney filed motions that the client was unaware of. Here, the client actively disagrees with the attorney. Is Connell’s position the same in this instance?

Connell confirms that it is; it is the attorney’s decision, he says.

Judge Pohl now asks Connell to weigh in on the issue directly at hand. Can one member of the defense team object to filing a motion to dismiss the others, if he believes it will be detrimental to his client’s defense?

Connell says it’s complex. He notes that “legal teams are essentially indivisible” once it has been decided who is the lead counsel. And it would be very hard for the lowest-ranking member to take a position adverse to the higher-ranking members. This makes it hard to “fashion a path where basically all of the interests which are in play can be represented.” But as he understands it, the attorney’s don’t have to file the motion. But this simply means that there has to be some other way—ex parte hearings, or letters, or “other ideas.”

But what if the lowest-ranking counsel sees the lead counsel as “being ineffective?” Might he then “owe a duty to the client to ameliorate that?”

Connell says yes. He has had to do that himself in a different trial. The ultimate duty of counsel is loyalty to his client. But this only places that duty and the interests of the client in controlling major decisions, such as representation, in conflict with the tactical decisions of the attorneys. He thinks it is within the power of the military commissions to order one of the attorneys to file such a motion. Even so, as a general rule, it is the attorney’s choice as to what motions to file.

Bin Attash has more to add to the discussion. He suggests that anything defense counsel doesn’t want to submit, they could just declare as against his best interests. The judge would only then consider what the attorneys put forward.

Mr. Bin Attash then asserts that he is from a different region, with different customs, a different religion, and that he is in the military commissions against his will. The latter point seems rather obvious, but Bin Attash asserts that on account of these differences, he should not have to “do or follow everything the lawyer wants to do.”

Judge Pohl emphasizes to Bin Attash that “nearly all defendants in any judicial system don’t voluntarily go there.” What matters are the rules of that judicial system, and the judge must apply American law.

Mr. David Nevin now rises to say that he does not agree with Mr. Connell’s assessment in its entirety, but he also doesn’t want to speak to it himself. Judge Pohl says any input from other defense counsel on the issue is simply advisory.

Judge Pohl now recognizes Trial Counsel Ryan, speaking for the government. Ryan notes that this matter was discussed extensively two sessions ago. So extensively in fact, that the judge “was sort of invited into the attorney-client relationship,” and over the government’s objection, the other parties were excluded from those conversations. Yet even so, we’re back here again.

Ryan notes that Pohl has already established the standard for dismissing Bin Attash’s attorney—that of good cause. And Pohl has “heard today a clear request from the accused” to be relieved of counsel. Ryan says this has to be dealt with, “one way or another.”

Ryan now moves to the crux of his point. The government has a suggestion. Whatever Bin Attash wants to submit to the judge, it should get to him somehow. He suggests everything else is the “logistics [of] how it gets to you.”

Ryan suggests that comments made in open court today, such as “my lawyer is now my opponent,” are “very meaningful.” They signal a “conflict of interest” and perhaps even the “complete breakdown of the relationship.” These issues, identified in case law, “could amount to good cause.” Given that, the judge can’t just walk past it. He has to find out what additional information Bin Attash would like to provide.

Judge Pohl notes that the trial counsel has “a dog in this fight” too, however. Does the government intend to request the full details of the issue and decide if they want to be heard on the matter?

Trial Counsel Ryan answers obliquely. To him, “it’s always in the best interests of the commission to hear from both parties.” But he doesn’t know what he doesn’t know, he says, and so it is up to the judge to determine when the government should be brought in.

Ryan recommends taking this issue one step at a time. First, the commission should accept Bin Attash’s new letter. Once the judge has that information, “we can readdress the whole matter.”

But Judge Pohl wants to know whether this matter, the right of Bin Attash to dismiss Ms. Bormann and Mr. Schwartz, needs to be handled before they address anything else.

The government believes that it does. Judge Pohl agrees. He has to go through this first.

He explains the situation to Bin Attash. The commission will recess, his letter will be translated, and then Judge Pohl will “see what the next step is.” However, if Bin Attash is not at the next session of the military commissions, the court will proceed as if the issue was never raised.

Bin Attash understands. He says—in English—“I will be here tomorrow.”

Judge Pohl calls the commission in recess.