Case Coverage: 9/11 Case

10/25 Session: A Rare Sunday Hearing, Part II

By Zack Bluestone
Wednesday, October 28, 2015, 11:20 PM

Because of the unusual length of Sunday’s 9/11 military commission hearing, the write-up of the session has been broken down into two separate posts. The summary of the morning session can be found here. And this post picks up with the afternoon session.

Before getting to content of the afternoon hearing, it is worth noting that Special Trial Counsel Fernando Campoamor-Sanchez had replaced the normal prosecution team before the recess. As explained in the previous post, it is standard practice for a member of the Special Review Team (SRT) to represent the government on issues related to the AE 292 series, which deals with a potential conflict of interest for the defense stemming from a government investigation. Given that the commission had not dispensed with the 292 issues prior to break, Mr. Campoamor-Sanchez remained in the driver’s seat for the prosecution for the afternoon session.

AE 292’s Conflict-Discovery Overlap

Just before the break, defense counsel James Connell had been ready to deliver a “lengthy” argument about a motion to compel discovery related to the government investigation (AE 292VV). After Judge Pohl called the commission to order, however, the prosecution immediately objected to the argument Mr. Connell wanted to present, which was based on a 17-page PowerPoint presentation he had distributed during the recess. Although Mr. Campoamor-Sanchez did not have a problem with addressing AE 292VV at some point, he explained that his understanding was that the commission intended to first determine whether Mr. Binalshibh’s team had a conflict of interest. To address the unrelated point about discovery would be “mixing things.” Additionally, after asked by Judge Pohl, the Special Trial Counsel confirmed that some of the material sought by Mr. Connell would first have to be released by Binalshibh counsel James Harrington, and this was not possible until the commission ruled on the conflict issue.

Mr. Connell pushed back against the objection. Based on his interpretation of the “drift of the argument so far,” Judge Pohl seemed to be “putting the cart before the horse” by suggesting that the commission could decide the question of conflict without the defense teams having access to the requested discovery. Additionally, because the commission had allowed the SRT to discuss its proposed order of analysis, Mr. Connell argued it would be “simply unfair” to not give him the same opportunity. In fact, the first slide of his presentation covered that exact issue.

Judge Pohl acknowledged the “chicken-and-egg component” of the conflict-discovery issue and permitted Mr. Connell to walk through his first slide before deciding if he would be allowed to continue. After dispensing with a few housekeeping issues (including marking the slides as AE 292IIIII), Mr. Connell began by describing three categories of discovery he hoped to obtain: (1) why the government was investigating, (2) what the government did in the investigations, and (3) what steps were taken along with and during the investigation. Defense access to this information, Mr. Connell claimed, was required before the commission could rule on the conflicts issue. Summarizing his main concern, Mr. Connell cautioned Judge Pohl that “if you act with only one-half of the room knowing what has actually gone on, then you severely risk acting prematurely, because you will not have an adversarial determination of whether a conflict of interest exists or not.

With an eye to finding a way forward, Judge Pohl conducted a lengthy exchange with Mr. Connell to distill his desired remedy. After repeated questions to this end, Mr. Connell finally asserted that the commission should retrospectively declare an 18-month period of potential conflict and then follow the remedial approach set out by the Second Circuit in United States v. Curcio. This includes advising the defendant of the right to conflict-free representation, instructing the defendant as to problems inherent in being represented by an attorney with divided loyalties, encouraging the accused to confer with chosen and independent counsel, and allowing a reasonable time for the defendant to make a decision. Additionally, to fully add meat to the bones of this request, Judge Pohl also asked Mr. Connell to propose a waiver instruction for the defendant. His proposed waiver colloquy, with light edits, would be read as follows:

Mr. Accused, there is a potential conflict of interest because your counsel was under investigation by the government. The steps that were taken in this investigation are X. The allegations were Y. The steps, if any, that we know that your attorney has done the same or differently were Z. Knowing all of this, are you willing to waive the potential conflict of interest that your attorney has?

Despite his efforts to help Mr. Connell craft a more precise request, however, Judge Pohl was by no means sold on the defense’s underlying arguments. Most significantly, he continued to imply some reluctance about asking the accused to waive a potential conflict of interest that occurred in the past, assuming that no conflict continues to exist moving forward. Judge Pohl also struggled to grasp what would create an ongoing conflict if the investigation had truly ended.

In his rejoinder to this new proposed relief, Mr. Campoamor-Sanchez said he felt a sense of déjà vu; Mr. Connell made the same arguments back in June 2014, and the commission nonetheless had decided that four of the five defense teams did not have a conflict (AE 292QQ). Given that Mr. Connell faced no conflict as a matter of law, his arguments amounted to little more than a “sideshow. Mr. Harrington, on the other hand, was a different matter; the prosecution acknowledged that the commission had ruled that he faced at least a potential conflict. However, the government disputed that the Binalshibh counsel had been operating under conflict for 18 months. After all, the proceedings had “grinded to a halt” precisely so that Mr. Harrington was not making decisions while under “the cloud of a conflict.” The commission also took the added remedial measure of appointing Lieutenant Colonel Julie Pitvorec as independent counsel.

Judge Pohl then asked the Special Trial Counsel if Mr. Connell’s proposed waiver colloquy should at least be read to Mr. Binalshibh, if not to Mr. Connell’s client. Mr. Campo-Amor Sanchez claimed that this was unnecessary because the conflict no longer exists but added that his response would be different if the investigation were still open. The prosecution also noted that the SRT “has an interest in making sure that all defense counsel in this case are conflict free,” in an apparent effort to bolster the credibility of its proffered analysis.

Everyone Wants to Add a View on AE 292

After Judge Pohl asked if there was anything further on this subject, Walter Ruiz, lead defense counsel for Mustafa Ahmed Adam al Hawsawi, rose to clarify his client’s position. Unlike the other defense counsel, Mr. Ruiz felt that there was no conflict of interest. In fact, he asked the commission to sever Mr. al Hawsawi’s claim so that his trial could proceed. Aside from ensuring that this standpoint was not lost among generalized statements by other defense teams, Mr. Ruiz also requested that he receive any discovery provided to other counsel regarding the investigation, just to be sure. Judge Pohl cautioned that “some things may be protected by privilege” but assured Mr. Ruiz that his “perspective is whatever came to me in any way, shape or form, or went out from me in any way, shape or form, the default is to give it to the defense.

Colonel Pitvorec then took the opportunity to add some precedential support to the argument she made during the morning session. The main case she cited was United States v. Merlino, which held that “an attorney who faces criminal or disciplinary charges for his or her actions in a case will not be able to pursue the client’s interests free from concern for his or her own well[being].” When Judge Pohl attempted to shift the conversation back to proposed relief, the Colonel agreed with Mr. Connell that a waiver colloquy is necessary, at least for Mr. Binalshibh. The judge then pushed back as to whether the legal issue facing Mr. Binalshibh was a representational question—that is, whether he wants Mr. Harrington to continue representing him—or a retrospective waiver of conflict. Colonel Pitvorec insisted it was the latter case, but Judge Pohl’s continued skepticism on this point suggests that he might come down the other way.

KSM lead counsel David Nevin then picked up on a question that Judge Pohl had asked Colonel Pitvorec: whether Mr. Harrington should have continued representing his client after he became aware of the investigation and felt he had a potential conflict of interest. Mr. Nevin defended his colleague, politely suggesting that at least some of the blame rested with the commission for not making more timely rulings on various motions briefed by the defense. Ultimately, Mr. Nevin suggested, it could have been any of the defense attorneys who were being investigated, and they all proceeded because they simply did not have enough information to take another course of action.

Noting that time was running short, Judge Pohl turned back to the prosecution to see if anyone would agree with him about the representational-versus-conflict dichotomy. As an initial matter, Mr. Campoamor-Sanchez stated that the prosecution agrees that Mr. Binalshibh needs to be informed about the investigation into his defense team. He also was inclined to side with the commission regarding the representational issue. According to the Mr. Campoamor-Sanchez, this would still entitle Mr. Binalshibh to information regarding the investigation but not as much as would be the case if there were an ongoing conflict of interest. He added—in response to a “strawman argument” from Mr. Nevin—that no one was investigated for their defense work; investigations only occurred in response to allegations of criminal wrongdoing.

After an update from the SRT on the status of current disclosure to defense counsel and a quick skirmish on the chicken-or-egg issue related to competency and discovery, Judge Pohl announced that there would be no decision on the conflict question before Monday’s hearing. And with that, the long Sunday hearing was now in recess.