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Story Publication logo February 19, 2020

Judge Weighs How to Keep Guantánamo’s 9/11 Trial on Track

The entrance to Camp 1 in Guantanamo Bay's Camp Delta. The base's detention camps are numbered based on the order in which they were built, not their order of precedence or level of security. Photo by Kathleen T. Rhem. Cuba, 2018. Source: Wikimedia Commons.

Carol Rosenberg tells both big-sweep and incremental stories about the court and captives at...

Ramzi bin al-Shibh, one of the men accused of plotting the Sept. 11 attacks, at Guantánamo Bay in 2019, in an image provided by his defense team. Image courtesy of The New York Times. United States, undated.
Ramzi bin al-Shibh, one of the men accused of plotting the Sept. 11 attacks, at Guantánamo Bay in 2019, in an image provided by his defense team. Image courtesy of The New York Times. United States, undated.

GUANTÁNAMO BAY, Cuba — A 75-year-old lead lawyer for one of the defendants in the long-delayed trial over the Sept. 11 attacks went before a military judge on Tuesday to plead that he be released from the case on health grounds. After three surgeries in 2018 and a recent consultation with a cardiologist, he said, "My trial days are over."

But faced with the possibility that the departure of the lawyer, James P. Harrington, could make it harder to start the trial as planned next January or could lead to his client being tried separately from the other four defendants, the prosecution objected and sought to keep him on the job.

There is no "emergency medical situation," said Edward R. Ryan, one of the government prosecutors, told the court.

The judge, Col. W. Shane Cohen, said he would rule Wednesday on the request by Mr. Harrington, who serves as the capital defense lawyer, or learned counsel, for Ramzi bin al-Shibh, one of the five accused plotters of the attacks. Mr. Harrington's request is but one obstacle to the start of jury selection in 11 months.

Mr. Ryan said the government refused to consider splitting up the five-man conspiracy case by allowing Mr. bin al-Shibh to be tried separately.

"They must be tried together," Mr. Ryan said. "And they must be tried on schedule."

He called giving Mr. bin al-Shibh a separate trial a "drastic remedy" that would "hurt this case, hurt the United States' interests."

Mr. Ryan invoked the memory of a sick, elderly Connecticut man who watched United Airlines Flight 175 crash into the World Trade Center on television, killing his son, daughter-in-law and 2-year-old granddaughter. The man, C. Lee Hanson, provided a videotaped deposition at Guantánamo at age 84, then passed away a year later.

Mr. Harrington has represented Mr. bin al-Shibh as a lawyer specializing in death-penalty defense work since 2012. He assured the judge, "I am not about to drop dead in front of you right now."

But in an at-times emotional argument, he said he had discovered that he could not carry on despite efforts to do so after three surgeries in 2018. "I am sad and disappointed in myself," he said.

So the question confronting the judge, in the short term, is whether to order Mr. Harrington to return to the court next month for scheduled pretrial testimony, which Mr. Harrington said he was not fit to do.

Mr. bin al-Shibh has been the most difficult of the Sept. 11 defendants — he was ejected from the court four times in two days in 2013 for interrupting the judge — and Mr. Harrington said their working relationship was broken. He said a cardiologist he saw last month helped him conclude that the stress of working on the case was harmful to his health.

While he intends to return to his 11-employee, two-partner private practice in Buffalo, he said, he believes it would be in a diminished role, perhaps supporting another lawyer in a domestic trial.

All sides agreed that Mr. Harrington would at minimum assist the next capital defender during a transition period to prepare for the estimated nine-month trial. Mr. Ryan, the prosecutor, said that keeping Mr. Harrington on the case, and presumably repeatedly traveling to Guantánamo, would provide "leverage" to motivate the general in charge of the defense teams to swiftly hire a new qualified capital punishment defense lawyer.

In a filing over the weekend, according to those who read it, the prosecutors estimated that Mr. Harrington had been paid around $3 million in the eight years he had been on the case, based on a mandatory, federal learned counsel hourly rate of $192.

Mr. Harrington said he found aspects of that filing "petty" and "vindictive." In January, he said, the court heard testimony from a former C.I.A. contract psychologist, James E. Mitchell, who with his partner received $81 million for their work in the black sites where Mr. bin al-Shibh was held incommunicado from 2002 to 2006.

Like Dr. Mitchell, Mr. Harrington said not all the money was pure income. Mr. Harrington said, like Dr. Mitchell, that he had employees to pay, insure and provide benefits — extras that prosecutors get with their government jobs. Moreover, he said, his firm would charge about twice the government's learned counsel hourly rate to a paying client.


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