FT. MEADE, Md. (CN) — Hearings for the five men accused of plotting the 9/11 attacks picked up Wednesday much where they left off in May, with alleged al-Qaida leader Walid bin Attash trying to purge his defense team.
Just before Judge Army Col. James L. Pohl called an early recess for the day, he told the Yemeni detainee that he must either accept his entire defense team or represent himself.
The government says bin Attash helped 9/11 mastermind Kahlid Shaikh Mohammad plot part of the 9/11 hijackings. He and the other four 9/11 defendants face the death penalty if convicted, though a trial date is nowhere in sight.
Bin Attash was on repeat during the military commission proceedings at the Guantanamo Bay Naval Base, which the Defense Department showed in a closed-circuit viewing at Ft. Meade. He asked Judge Pohl for the fourth time
to send learned counsel Cheryl Bormann packing, along with assistant defense counsel Michael Schwartz.
"I do not want him," bin Attash said of Schwartz, adding later, "I do not want her [Bormann] in the case."
In May, Pohl ordered Bormann to stay on, even though she had previously asked to be excused because of problems with alleged government intrusion of attorney-client privilege.
Bormann appeared in court wearing a black hijab, or Muslim headscarf, but did not sit at the table with bin Attash.
"I'm sitting at the back of the courtroom, at Mr. bin Attash's request," she noted.
Despite his earlier refusal, Pohl now appears willing to allow bin Attash to undertake the purge if he goes it alone, even though the military commission requires the presence of a learned attorney — a civilian lawyer with experience trying capital cases.
Pohl did not question bin Attash about why he wants to dump the two attorneys. However, the captive told Pohl that by his own choosing he has not communicated with his legal team beyond paralegals and analysts since February. Chief Defense Counsel Marine Brig. Gen. John Baker has failed to resolve his problems with the team, he added.
On that front, "there is nothing new," bin Attash said. "They began feeling so powerful that they can do whatever they want," he told Pohl through an Arabic translator. The captive, dressed in white garb with a white turban on his head, warned the judge that he might lose control of himself.
"I don't want to create any problems but I cannot bear their behavior," he said through the translator.
Baker urged Pohl to keep the defense team together.
"No accused is better off getting rid of all his defense counsel," Baker said. However, he conceded that bin Attash has the right to represent himself, and said he must do one or the other.
Prosecutor Ed Ryan said putting bin Attash in a position of having to accept or reject his entire defense team leaves him vulnerable to coercion, and amounts to extorting him into representing himself.
"That's not the right result, especially in a case like this," Ryan said.
The prosecution argued for a so-called third option, allowing bin Attash to waive his counsel without good cause.
Whatever is going on over there, Ryan said, "It's not getting better."
Ed Perry, the most recent civilian counsel on bin Attash's defense team, told Pohl that asking for a third option was unprecedented in the history of jurisprudence. Perry, along with Bormann, was also banished from the captive's table.
Baker argued that the detainee cannot fire subordinate counsel over the lead counsel's objection without good cause because he chose appointed counsel, and the attorney-client relationship is already entrenched — Schwartz has been on the case for nearly five years. And on that basis, bin Attash cannot ask for replacements if he ditches Schwartz or Bormann.
"The accused gets who he gets," Baker said.
Baker asked Pohl to rule immediately on the matter.
"We're at all stop, sir," he said.
Pohl warned bin Attash he would lose the "institutional memory" of Schwartz's time on the case and any motions he filed. He also indicated he would not grant any delays in the pretrial hearings to catch up if bin Attash got rid of Schwartz.
Bin Attash said he prefers replacements for the attorneys when Pohl asked if he wanted a replacement for Schwartz.
"If this is a possibility in the future, then yes. I will not cause any delay of the proceedings. Even if that means that I stay without a capital-case lawyer. And even if I lose all the motions presented," bin Attash said. "The harm of enduring with the presence of the lawyers is greater than the harm of going without."
After a 2 ½-hour lunch break, Pohl agreed with Baker that bin Attash needs good cause — which he does not have — to ditch his attorneys. He also agreed that the captive and his defense team need an immediate answer on the matter.
Before calling an early recess, Pohl gave bin Attash his two options: keep his team as is or represent himself. As Pohl stood up to leave the bench, bin Attash shouted out to get something on the record. Pohl did not oblige him.
The pretrial hearings will resume on Thursday at 9 a.m.