2/14 Hearing #1: A Complaint from Bin Attash About Attorney-Client Material

By Raffaela Wakeman, Wells Bennett
Thursday, February 14, 2013, 9:31 AM

Romance is in the air---and waves of the purest judicial authority---as Judge Pohl calls our session to order.  The five men accused of planning 9/11 are present in the courtroom, along with lawyers for defense and prosecution alike.  Ditto representatives of the FBI.

An accused, Walid bin Attash, stands.  Why is he standing, the court asks Cheryl Bormann, one of his lawyers.  It has to do with the seizure of materials from bin Attash’s legal bin that she brought to the attention of the court yesterday: stamped items, already reviewed, were grabbed.  The lawyer is irate, and insists on both an ex parte hearing and a remedy.

The Chief Prosecutor is visibly concerned, though he explains his distance from the issue, which is the responsibility of JTF, and not his office. Nonetheless, JTF has officials who can get to the bottom of the issue---at least until a written communications order is entered in this case.  Bormann again: what gives here?  This week, while CAPT Welsh testified that JTF never seized privileged communications, JTF was busy seizing privileged stuff---including documents directly relevant to defenses in this case.  And she’s not interested in bureaucratic niceties.  She wants a judicial remedy, now.  The defense can’t do its job under these conditions, she says---and her client is still standing in apparent protest.

Judge Pohl says we'll turn to Lt. CDR Massucco, the official in question, afterward Vice Admiral MacDonald's testimony, which is certainly not enough for bin Attash, who speaks (in Arabic, his words here translated): “in the name of God, there is an important thing for you.”  Judge Pohl orders the man to sit.  He doesn’t: he hasn’t been sent here to testify, he adds.  The court warns bin Attash sternly, cautioning that he could be taken out of the courtroom, adding that bin Attash is fearful of more seizures of legal materials, while the accused are here in court.

David Nevin wants the seizure issue up front.  It cannot wait until after MacDonald's testimony, he says, as JTF appears to be seizing and re-reviewing materials already stamped during the baseline review.  This issue goes to our ability to represent these men, as the discussion of the Guidelines yesterday illustrated.  The most important of these called for the establishment of a trust relationship--which JTF appears to be crippling in its handling of attorney-client documents.  One of MacDonald’s duties as Convening Authority, Nevin reminds the court, is to ensure the sanctity of these proceedings.  Wouldn’t he, therefore, insist on resolving mail issues now?  The question is lost on the court, who reminds counsel that procedural issues in the court are for his resolution alone, and not for MacDonald.  Binalshibh’s lawyer, James Harrington, joins Nevin’s remarks, as do other counsel.

The court still sees no prejudice in starting with the Convening Authority, counsel’s argument notwithstanding.  So that’s what we’ll do: start with the Convening Authority, who appears via video.