A Cloud Hanging Over the Military Commissions

It shouldn't have been such a difficult issue. After all, defendants on trial for mass murder in a death penalty case often aren't happy with how things are going. That may include being disappointed with their lawyers.

But that's in federal court. The military commissions are different. The problem with the commissions is that the system itself, combined with the imprisonment of the defendants at the Guantanamo Bay detention center in Cuba, make a defendant's complaints much more complicated. These problems raise a key question that could haunt this case, even if it one day gets to trial and the defendants are convicted: Can legal representation in the military commissions ever be effective?

Accused 9/11 conspirator Walid bin Attash has been complaining about his lawyers for months now. In October, the military commission judge, Army Col. James Pohl, ruled he couldn't fire his lead lawyer, Cheryl Bormann, because he hadn't shown "good cause" to do so, which the Military Commissions Act, or MCA, requires. But more recently, bin Attash has decided he no longer trusts Bormann or his former military lawyer, Michael Schwartz, who was so committed to his client's defense that he resigned from the military so he could continue to represent him. But that was back when bin Attash still trusted him.

This week, bin Attash, accused of training the 9/11 hijackers, told the judge that even though he's just been assigned a new military lawyer, he won't talk to him, either, because all of the defense attorneys talk to each other. On Wednesday, bin Attash didn't even want his lawyers sitting next to him.

"That's fine with us," said Bormann, clad in a full-length black Abaya to honor her client's religion, explaining to the judge why she was sitting in the back of the courtroom instead of at the counsel table beside her client.

Despite her efforts, she said, by Wednesday morning it had become clear she could no longer continue to represent bin Attash. If he wasn't going to speak with her or even come to court, she was going to have to withdraw from the case, she told the judge. Judge Pohl has been patiently presiding over an endless list of unprecedented and often convoluted procedural issues since the Obama Administration began this case against the five alleged plotters of the 9/11 attacks in the military commissions in 2012.

Bormann didn't blame her client. "Of course he thinks I'm ineffective if I can't do anything for him," she told the judge. Because of the prison camp's rules, her correspondence with bin Attash has been searched by the government, she's been unable to arrange family visits, and she hasn't even been able to get him adequate medical care, Bormann said. "He's been effectively in solitary confinement since 2003" and has also been tortured, she added, eliciting an objection from the prosecution that his treatment was irrelevant.

"This is the only penal institution in the world that doesn't allow face-to-face visits with family members," Bormann continued, explaining that her inability to help him see his family or improve his conditions of confinement had undermined her credibility. Bin Attash's mother passed away recently, Bormann said, and she "couldn't even get him a phone call with his family."

Perhaps most damaging to the attorney-client relationship, she said, was that her promises to her client that their communications were privileged and could not be viewed by the government (a standard professional obligation in attorney-client relationships) had been repeatedly broken. Although that privilege would have been honored in federal court, she said, it was not at Guantanamo.

Indeed, over the past three years, defense lawyers have at various times learned that the meeting rooms where they interviewed their clients were wired for surveillance; that the microphones in the courtroom could pick up confidential attorney client conversations transmitted to an unknown government agency monitor; that the defendant's personal and legal documents were regularly searched when they left their prison cells; and that the government had access to the defense teams' computer data.

On Wednesday, Bormann read to the court from a motion she filed in December 2013, in which she predicted that the "ill will created by JTF GTMO's interference" would destroy her relationship with her client. That's exactly what has happened, she said.

"The system itself is the problem," said Bormann.

"I'm just a judge," responded Pohl, who's been hearing these complaints about the system for years. "I didn't pass the MCA. I didn't make the rules."

Would anyone be able to effectively represent a defendant in the military commissions, in her view? he asked Bormann. No lawyer who had promised confidentiality to her client could be effective in this system, she said.

The government, which has been trying to move the case along, objected to Bormann's being allowed to withdraw. Prosecutor Edward Ryan said Bormann has already invested a huge amount of time and effort in the case, and a new lawyer would effectively have to start all over. To allow Bormann to withdraw, he said, would be allowing the defendant to manipulate the system, and cited a federal court case where a defendant asked for a new lawyer a week before trial and the court refused.

Of course, the 9/11 case is nowhere near trial. There isn't even a trial date set yet. But more importantly, cases from the civilian federal court system aren't particularly relevant to the military commissions system, which has the unique set of problems Bormann described when it comes to attorney-client representation. Not only aren't the federal court cases binding precedent, but in the civilian justice system, there's a long history, tradition, rules and case law designed to protect attorney-client confidentiality. Those don't exist in the Guantanamo military commissions. Guantanamo was created as an interrogation facility, with 24-hour pervasive surveillance. It was not designed to facilitate bringing detainees to justice.

What's more, the commissions lack the experience to even understand the role of defense attorneys in a capital case. Bormann at one point told Judge Pohl that his questioning of a junior attorney on her defense team about the team's rules of conduct was inappropriate and undermined the lawyers' credibility with their client. As a military judge, Judge Pohl has no experience handling capital cases, and seemed unaware of the usual practices of defense lawyers in these matters.

Judge Pohl eventually ruled that for now, he wasn't going to allow Bormann to withdraw from the case, because she hadn't filed the proper legal papers to support her request. He said she was free to do so, however, and after the government had a chance to respond in writing, he would reconsider his ruling.