Dominating the Guantanamo war court today was yesterday's suggestion by Walid Bin Attash that he represent himself. He's accused of organizing an Al-Qaeda camp in Afghanistan where two of the September 11, 2001 hijackers trained, and charged with murder and a series of other crimes related to that mass killing more than 14 years ago.
Almost everyone I've heard here at Guantanamo thinks representing yourself, or going "pro se," is a mistake if you want to win your case, and it seldom turns out well. (Ben Franklin is reported to have said, "The man who defends himself in court has a fool for a lawyer and an imbecile for a client.") Underwear bomber Umar Farouok Abdulmattab tried representing himself and ended up pleading guilty. Mafia boss Enrico Ponzo told his judge he could represent himself because he was self-taught in the law "like Abraham Lincoln," before being sentenced to 28 years. When Paul McCartney's ex Heather Mills opted to represent herself in their divorce case, she reportedly ended up chucking a jug of water over McCartney's lawyer in court.
However inadvisable, it happens, and unless Guantanamo Judge Pohl rules that Bin Attash is incompetent, the accused appears to have a right under the Sixth Amendment to conduct his own defense, although quite how much the U.S. constitution applies to these military commissions is unclear.
At today's hearing Bin Attash took up his usual place in court, behind the alleged mastermind of the September 11 attacks, Khalid Sheikh Mohammed, and to the left of the legal team representing him for now, and listened attentively.
There was far less chatter between the accused today. Most read or held whispered conversations with their lawyers. Ammar Al Baluchi carefully steered the wheels of his office chair around the shiny silver shackles on the floor before leaning on his defense team's desk, paying much closer attention than he did yesterday.
Like yesterday's session, today's lasted only about an hour, and arguments weren't about whether it would be a good idea for Bin Attash or any of those accused to be his own lawyer but whether, given the peculiarities of detention in Guantanamo, it's even possible.
Counsel James Connell, attorney for Al Baluchi, raised some of the obvious practical difficulties of a Guantanamo detainee trying to represent himself from solitary confinement where he doesn't have access to a law library, privacy or a desk. "Logistically, pro se representation at Guantanamo is impossible," Connell told Judge Pohl.
Bin Attash's lawyer Cheryl Bormann complained that last night her client was put in a holding cell near the court with the air conditioning turned up so high he got hypothermia. Such treatment, she noted drily, "affects his ability to make decisions."
Then there's the sticky stuff about secrecy. If Bin Attash or any of the other defendants become his own lawyer, will the prosecution share relevant, classified information with him? Or as Judge Pohl phlegmatically mused, "Is this not a conundrum?"
It certainly is, and exploring it gave the defense teams a chance to complain about how they're already not receiving information deemed too sensitive for them to see, and if one of the accused represents himself, the government will be even less likely to share it. And there are currently hearings closed to the accused but open to their lawyers -- what happens if one of the defendants is his own lawyer?
This is a crucial issue, and calls into the question the fairness of such of a trial. "We have our hands on one of the live wires of this case," KSM's counsel David Nevin told the court, and the judge agreed. "This is a critical issue for all the accused and we can't rush through this," he said.
So he adjourned the session at 10:26 a.m. and asked us to come back again at 9 a.m. tomorrow.