Case Coverage: 9/11 Case

Yesterday at Guantanamo, 10/22 Session: Time to Sign the MOU--Or Is It?

By Yishai Schwartz
Friday, October 23, 2015, 5:12 PM

The Guantanamo detainees on trial for orchestrating the September 11th attacks returned to court on Thursday for continued pre-trial proceedings. Wednesday’s hearing was cancelled so that the court’s Arabic translators could spend their time translating detailed advice for Walid Bin Attash in response to his request to represent himself. Now, with that task completed, the translators are back in court and proceedings continue.

The proceedings begin with some initial housekeeping matters, including some classified filings from Ammar al-Baluchi attorney Jay Connell (in connection with a scheduled 505(h) hearing) and filings from all attorneys registering their reservations to their recently signed clean MOUs.

Miltiary Judge James Pohl turns to James Harrington, attorney for Ramzi Binalshihb, to discuss the Binalshihb legal team’s failure to sign the memorandum of understanding (MOU). Harrington explains that the decision to allow his legal team to sign the MOU rests with his client, and that failing to get permission from Binalshihb before signing would do irrevocable damage to attorney-client trust. Nevertheless, after some more discussion, Pohl makes clear that Harrington has two options: he can either sign the MOU as is, or he can try to explain how he intends to represent his client without access to classified material. The time to finally decide is now. Harrington requests permission to put the final question to his client, and Judge Pohl agrees to schedule a recess shortly so he can do so.

Before that recess, however, Walid Binattash attorney Cheryl Bohrmann raises an additional issue. Bohrmann explains that after being read into a classified program―first disclosed by Connell on Monday―she sought the ethical advice of Chief Defense Counsel Brigadier General John Baker. But because Baker hadn't been read into the classified program, he couldn’t actually discuss the matter with her. Bohrmann is therefore requesting that Baker be read into the program. Pohl responds by explaining that because Baker isn’t himself a party to this trial, the judge lacks the authority to order that he receive access to classified information.

However, just because Pohl won’t order access, doesn’t mean that the government cannot choose to give Baker access anyway. So Judge Pohl turns to Brigadier General Mark Martins and requests that the government read Baker into the relevant program. After a brief back-and-forth confirming that Baker has signed a clean MOU and ensuring that agreement won’t constitute a precedent, Martins agrees that giving Baker access to the discussed information is appropriate.

Next, Mustafa Adam al-Hawsasi attorney Walter Ruiz pushes to have his entire team read into the classified program. He explains that although the whole legal team has signed the requested MOUs, only four attorneys were actually permitted access. Pohl agrees that the burden should be on the prosecution to explain why they won’t give access to the entire team, and he requests that the government provide an explanation. Martins responds that Judge Pohl’s request is an inverse of the proper procedure: classified information is “need-to-know,” and so the defense must file a written motion explaining its rationale for why the entire defense team must have access. The government can then respond specifically to the defense’s arguments. Judge Pohl is puzzled by this, and requests that the government provide notice of the general authorities and law that is compelling it to limit access in piecemeal fashion.

Ruiz too doesn’t like this. He explains that is a “game-changer” for him and his willingness to stay on the case. After three years of litigating the MOU, his team finally agreed to sign on the understanding that they would all have access to the classified material. Allowing the government to pick who gets what on the defense team represents an unacceptable governmental reach into defense team operation and strategy. What’s more, the fact that the government has granted access to more members of some teams than to others has introduced an element of disparity.

Finally, Connell comments briefly on some of the issues that have just been discussed, and Judge Pohl calls a 45 minute recess so that Harrington can meet with his client for a final decision on his MOU.

After this recess, all parties return to court and Harrington explains that his team has agreed to sign clean MOUs and, like the rest of the legal teams, file its reservations separately. The MOU issue, it seems, is finally resolved.

Judge Pohl then asks Martins how long it will take to read Harrington and his team into the classified program currently under discussion. Martins suggests that it can be done within the next few hours, and adds that he has conferred with Ruiz so that the members of his team he needs might join in the briefing as well. Ruiz quickly explains that although he is currently working with Martins to ensure his DSO (Defense Security Officer) has access, he still believes his entire team must be read in.

Judge Pohl suggests that the defense teams that have not yet been read into the program do so immediately and prepare for a 505(h) hearing at 1.30pm, with a potential 806 closed session to follow. He also outlines the likely issues to be addressed on Friday, and adds―in reference to the recent discussion of pro se representation―that if defendants are not themselves present Friday, the court will proceed with current counsel representing them. Finally, Borhmann points out that as Friday is a holy day, Bin-Attash is requesting that the court address his issue (the pro se advice) on Monday. Judge Pohl agrees and calls a recess until the closed 505(h) hearing scheduled in a few hours.

As that hearing takes placed in closed session, no further public hearings happen on Thursday.