Session 2/17: The “Lawyer Asking for Her Own Dismissal” Edition

Military Judge James Pohl opens the session at 9:35 am. He notes the names of those present, including each of the defendants except for Ramzi Binalshibh. An anonymous US Army major takes the stand to testify that Binalshibh had been advised of his right to attend proceedings and has chosen not to do so.

Judge Pohl then turns back to defendant Walid Bin Attash’s request to fire his lawyers, Cheryl Bormann and Michael Schwartz—which was the subject of yesterday’s session. The judge begins by announcing that he has received a declaration from chief defense counsel General Baker asserting that he sees no reason why the attorneys should be excused. Judge Pohl then explains to Bin Attash that this declaration is just General Baker’s own opinion and that the decision to dismiss the attorneys ultimately rests with the judge himself. Judge Pohl also emphasizes to Bin Attash that the procedure on this issue—the defendant and judge communicating without input from the government—is highly unusual and is only permitted because of exceptional circumstances.

Judge Pohl then announces his decision: Bin Attash has once again failed to establish good cause under the law to release Bormann and Schwartz. However, given the constraints Bin Attash faces as a non-lawyer seeking to file a motion dismissing his attorneys, Judge Pohl is ordering the Chief Defense Counsel to appoint an independent counsel to assist Bin Attash on this issue alone.

Bin Attash then rises to explain that from this point forward he will refuse all contact with his attorneys, including being present in the courtroom as long as they remain his representatives. He acknowledges that from the Court’s perspective this might mean he is voluntarily waiving his right to attend, but insists that from his perspective, he has no choice but to exit and remain absent.

Before Bin Attash can be escorted out of the courtroom, however, Cheryl Bormann cuts in and makes her own motion to withdraw. She explains that a series of events—invasions of attorney-client privilege, lack of access to evidence, torture, failed motions for family visitation, and more—have fatally undermined her credibility vis-a-vis her client. She made certain representations to her client about how the proceedings would work, and given the parade of mishaps (real and perceived), Bin Attash simply doesn’t trust her anymore. “With enough little pebbles being added to the glass” of her credibility, Bormann explains, “eventually there is no more water left.”

Judge Pohl presses Bormann, pointing out that if government conduct provides a basis for her to withdraw, it seemingly also provides a basis for all other attorneys in these proceedings to withdraw as well. Bormann mostly agrees. The Commission system itself is so broken and so different from the expectations she gave Bin Attash, that any attorney who made similar, at-the-time reasonable representations to her client would be similarly undermined and ineffective.

Prosecutor Ed Ryan responds, urging the Court to ignore Bormann’s litany of general complaints against the Commission and focus instead on the relevant legal issue: whether there is basis for a withdrawal. The fact that she doesn’t like the system she committed to work within cannot possibly provide such a basis.

Ryan further argues that there are a host of reasons why Bormann must remain on the case: that Bormann committed to seeing the case to its conclusion; that the case is already four years in and that both Bormann and the government have poured significant resources into her representation of, and relationship with, her client; that the case is just now moving into a phase in which the defense will receive large batches of discovery; that Bormann’s withdrawal will infringe on Bin Attash’s right to learned counsel; that Bormann’s advocacy has clearly been tenacious and competent; and that allowing this withdrawal would open the proceedings to strategic manipulation by defendants who could simply delay by instigating a confidence breakdown with their attorneys.

Finally Ryan emphasizes that the “good cause” standard for dismissal of an attorney requires objective reasons for withdrawal, not a breakdown in relationship precipitated by the subjective feelings of a defendant. To support this position, Ryan cites an Eighth Circuit case, United States v Barrow, in which the court required a “deficiency in appointed counsel’s representation,” rather than simple “unwillingness … to communicate with counsel,” as well as the arguably similar cases of Stenson v Lambert and Hunter v Delo. Although those cases concerned a defendant’s motion to dismiss his attorney, Ryan argues that same standard applies when an attorney seeks to withdraw herself. Ryan further suggests that the court explain to Bin Attash that he can either retain these attorneys or decline representation, but that he does not have a right to substitutes. He also recommends that Bin Attash not be allowed to leave the courtroom given his attempt to define his absence as involuntary.

Defendant Bin Attash now asks Judge Pohl whether, if his attorneys do successfully withdraw, one of the attorneys for the other defendants might represent him as a temporary fix. Judge Pohl responds that such a request would raise a number of complicated issues without a simple answer.

Judge Pohl then denies Bormann’s motion to withdraw, but without prejudice, suggesting that she file a similar but written motion together with legal citations in the normal fashion. He explains to Bin Attash that his lawyers remain his lawyers for the time being, and that if he does not want to be present he will have to voluntarily waive that right. Bin Attash indicates he understands and is escorted from the courtroom. The court recesses for 15 minutes.

Proceedings resume at 11:15 am, and now the focus is on a motion from Khalid Sheikh Mohammed’s attorney, David Nevin. Nevin explains that as a consequence of opaque clearance issues, a critical interpreter has been temporarily removed from his team. Nevin is thus seeking an abatement in proceedings or an order facilitating the interpreter’s return.

Nevin speaks at length about the interpreter’s role as an integral part of the defense team, and describes how despite having worked on the defense for years, his clearance suddenly became an issue in 2015. The issue is murky, and the Nevin’s team can’t even get a clear picture of what the problem is—although it seems to be an interface problem between DOJ and DOD clearances. Nevin says that he has been assured multiple times that the interpreter will be read in shortly, but each assurance is followed by more delays. He further argues that given the lack of transparency about what precisely the issue with the interpreter is, and whether it might be something more substantive, the entire defense team is left in a position of conflict, in which it cannot adequately advise the client. Nevin suggests that if Judge Pohl directs the government to resolve the issue and abates the proceedings until it does, the clearance process will suddenly move much more quickly.

Prosecutor Clay Trivett then responds for the government. He explains that the prosecution is not directly involved in the clearance process and so can’t be of much help in expediting the process. Judge Pohl and Trivett engage in some back and forth as the judge tries to gain a better understanding of whether anyone on the prosecution side has any additional information about the nature of the hold-up in the interpreter’s being read into Special Access Program. Judge Pohl expresses frustration with the diffusion of responsibility surrounding clearances and asks Trivett to track down the name of the “faceless bureaucrat” in Washington responsible for the clearance issue, and whom he might push to either explain the nature of the delay, or to expedite the process.

The Court then recesses for lunch.

Judge Pohl calls the Commission back into session at 1:41 pm, now with defendant Ramzi Binalshibh in attendance. Trivett reports back to Judge Pohl that the point of contact for the clearance issue is the program manager for the National Programs Special Management staff in the office of the Under Secretary of Defense for Intelligence. He explains, based on his conversation with this official, that the interpreter does have TS/SCI clearance, but that he cannot be read into the SAP until an ongoing review into prior conduct (from when the interpreter was working on habeas issues) has been completed. Because the interpreter retains his clearance, and it is simply the SAP access that is being held up by a review, Trivett explains, there is also no due process issue here for the interpreter. Trivett reiterates that Mohammed has no right to a specific interpreter, and that in the meantime the government has provided a fully qualified interpreter as a substitute.

Judge Pohl asks Trivett to clarify: the ongoing review is focused on the interpreter's prior conduct—but does this mean that it is definitely not related to any allegation of commission-related misconduct? This is important in order to ensure that there is no conflict of interest here for the defense team. Trivett says he thinks this is the case, but agrees to get clarification from the same official. The court recesses while Trivett seeks clarification.

At 3:23 pm, the commission resumes proceedings. Now Trivett reads aloud a short, carefully crafted statement: the DoD is doing an administrative review about whether certain individuals had access to high value detainees without proper clearances. He emphasizes that “there is no indication that this inquiry is due to any commission-related misconduct on the part of Mr. Mohammad's interpreter,” but explains that until the review is complete, the interpreter will not receive SAP access.

As Mohammed is himself a high value detainee, Nevin is still concerned that the conduct under review might affect his team. He therefore requests an opportunity to have a direct back-and-forth with the defense official responsible for the review. Trivett argues that this is unnecessary as it has already been established that the review is totally unrelated.

Judge Pohl rules that for the present proceedings, the temporary interpreter is sufficient, and therefore denies Nevin’s motion for an abatement. However, he also orders the government to give the defense and the commission a substantive update on the status of the interpreter's read-in by March 15th. He warns that if there is further delay, he may have to postpone the April hearings.

Next, the court turns to a motion from defendant Ammar al-Baluchi’s attorney James Connell. Connell points out that over 8,000 pages of discovery have been marked as classified “pending review.” Connell argues that extended precautionary classification violates the entire regulatory classification regime which limits tentative classification to 180 days (at the most). He catalogues the costs of this violation for the defense and the public, as well as the defense’s difficulties in initiating its own classification review. It should be the government’s responsibility to figure out what among these materials truly ought to be classified, Connell insists.

Next, Judge Pohl and Trivett engage in a back and forth as the judge tries to get a better handle on precisely how the classification process is working here. Specifically, there seems to be debate over whose responsibility it is to cull material from the larger mass to be submitted for classification review. The defense is concerned that if it culls a subset of documents and submits it for review as “material to the preparation of defense” this could tip its trial strategy. By contrast, the government insists that the review process is walled off from the prosecution, so there is no concern over revealing litigation strategy, and further argues that the classification is not nearly as burdensome as Connell suggests. Trivett also adds that it is working toward getting the defense “display” authority so that it can discuss certain classified material with the defendants themselves.

Most relevantly, Trivett categorically rejects Connell’s characterization of the debated material as “tentatively classified” subject to 180 (or 30) day limits. Instead, he insists that all of the material marked “pending” is actually “derivatively classified” as secret or higher and is only “pending” in the sense that if the defense wishes a precise classification, it can request that through its own review channel. (The material was turned over to the defense through an expedited process, Trivett explains, for the defense’s benefit.)

After a brief series of clarifications between Judge Pohl, Connell and Trivett, Walter Ruiz, attorney for defendant Mustafa al Hawsawi, makes a few additional observations. First, he argues that relying on attorneys to determine which pieces of discovery are relevant enough to be reviewed and potentially shared with defendants runs counter to how capital cases should be handled. The client is critical in determining what information is in fact relevant. Furthemore, Ruiz explains that his team did precisely what Trivett suggested that the defense could do, that is submit the entirety of its discovery marked “pending review” for classification review through the OCA channel. However, his team was then told that they were trying to “break the system,” and they have received no information on any progress.

Cheryl Bormann now steps in, explaining that her team has also tried to use this channel to review classification on much smaller documents (sometimes only a few pages), but that it can still take months to receive guidance or review. She adds that the government’s over-classifying of large swathes of material is denying her client resources insofar as many members of the defense team do not have highest level clearances.

Next, David Nevin adds that the government’s explanation of “pending” essentially amounted to an admission that it is over-classifying material, itself a violation of executive orders. Lastly, Ramzi Binalshibh attorney James Harrington chimes in as well, explaining that this issue is further complicated for his team by its issues with its Defense Security Officer.

Judge Pohl thanks the attorneys for their comments, previews the issues to be discussed at the next session and adjourns the proceedings until tomorrow morning.