It has been a long, drawn-out process, and proceedings quickly hit yet another snag, as one client asked about the possibility of representing himself and prompted the detailing of a long list of complaints about the process the U.S. is using to try those accused of plotting the attacks.
“I would like to know what are the procedures for self-representation?” bin Attash asked. He said he does not trust the commission or his lawyers, including Cheryl Bormann.
She then cited some of the reasons her client lacked confidence in his defense and the court. The list of grievances was long.
During the trial, there was a set of microphones at the defense tables in the courtroom, feeding audio to a government agency, assumed to be the CIA.
Bin Attash said he does not know if there is an FBI agent on his defense team, which was the case with bin al-Shibh, or if there is a CIA operative on his team. “Because in this bizarre setting, that actually has occurred,” Bormann said. Bin al-Shibh previously identified a courtroom interpreter as someone he encountered while at a CIA black site.
Also, confidential legal materials have been seized from the defendants more than once. “We told him that his attorney-client privileged materials would be sacred, they would never be seized and read, that we lied to him about that,” Bormann elaborated. “No motions to protect his materials from being seized have been granted.”
Other oddities include the discovery of obscured microphones in rooms used by defense lawyers and the fact that thousands of defense counsel emails were given to the prosecution.
Now the bid for self-representation has triggered even more issues.
Army Col. James Pohl, the presiding judge, has to decide two things: how self-representation would work and if the accused waived his right to counsel knowingly and voluntarily, making an informed choice to represent himself.
But essentially nothing Bin Attash does is voluntary, given the nature of his imprisonment at Guantánamo Bay in Cuba, where he is held incommunicado in Camp 7, a unit for high-value detainees. That level of secrecy causes all sorts of legal problems. “I can't possibly advise Mr. bin Attash of his rights because I frankly don't know what they are,” Bormann said.