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February 16, 2016

Military Commission in 9/11 Case Stalls Again, This Time Because Defendant Doesn't Trust His Lawyers

This is a cross post from The Huffington Post.

When the Guantanamo military commission opened this morning in the 9/11 case, the first hearing in the case since October, it quickly became clear that once again, things weren't going to get very far. Within minutes of the start of the hearing in the case against the five alleged masterminds of the September 11 terrorist attacks, Walid bin Attash, who's accused of helping to train the 9/11 hijackers, announced he doesn't trust his appointed lawyers and wants to communicate with the judge directly instead.

Judge James Pohl, who'd already received one letter from the defendant, said he was reluctant to consider another, in part because it wasn't in proper legal form. "It's not my job to take your paperwork, put it in a legal format, and then rule whether or not my legal analysis is correct," he explained to bin Attash. The way it's supposed to work, he added, is that either a defendant is represented by his lawyers, who submit legal motions to the court, or he represents himself.

Bin Attash, who in previous hearings had asked to fire his death penalty counsel, Cheryl Bormann, was clearly not satisfied by that response. He reiterated that he does not trust either Bormann or Michael Schwartz, his former military-turned-civilian lawyer assigned to represent him. (Notably, at the last hearing, bin Attash said he still trusted Schwartz; apparently that's over.) Although he's not yet willing to say he doesn't trust a new military lawyer assigned to the team, bin Attash did make clear that he doesn't trust the new, junior lawyer to make a motion to dismiss the other two, more senior lawyers, which is what bin Attash apparently wants him to do.

Judge Pohl looked flummoxed. This was not the way things were supposed to happen. Previously, Judge Pohl had ruled that bin Attash had not demonstrated "good cause" to fire his lawyers, and bin Attash hadn't requested to represent himself. Apparently unsure what to do, Judge Pohl on Tuesday morning embarked on a long colloquy with bin Attash about the meaning of legal representation, the jobs of the lawyers and of the judge and the need for bin Attash to either trust his lawyers or go it alone. That went around in circles for a while until one of the government prosecutors, Edward Ryan, finally stepped up to say that he thinks it's now clear there's been an "irreconcilable conflict" between bin Attash and his lawyers and the judge is going to have to consider the facts behind it. "You certainly heard today a clear request from the accused that he wants to be relieved of counsel," said Ryan. "So it has to be dealt with one way or another," he said, adding: "We're talking about right to counsel."

Dealing with it will have to start by the judge having someone translate bin Attash's letter, which is written in Arabic.

Judge Pohl eventually agreed. By around 10:30 a.m., an hour and a half into the day's hearing, he announced the military commission would recess until the letter could be translated. Because this is all has to happen on Guantanamo time, the commission is not scheduled to resume until Wednesday morning.

Hearings in the case, which was filed in the military commission in 2012, more than ten years after the 9/11 terrorist attacks, are scheduled to continue through next week.