Assembling defense team will be among the initial challenges
Federal court set to confront issue of self-representation

By Peter Finn
Washington Post Staff Writer
Sunday, November 15, 2009

In a military commission at Guantanamo Bay, Khalid Sheik Mohammed kicked his military attorney off the defense team, forced a civilian lawyer to sit at the back of the courtroom and reluctantly accepted the presence of another advisory civilian counsel to help him defend himself.

As the trial of Mohammed, the self-described mastermind of the Sept. 11, 2001, attacks, and four alleged co-conspirators moves to federal court in Manhattan, the issue of who will represent him will be among the first in an array of complex legal issues. And the trial may not begin until 2011 or even 2012, according to legal experts.

"I would say a minimum of two years," said Mary Jo White, a former U.S. attorney in the Southern District of New York, noting that the pretrial discovery of top-secret material would be the reason no one is likely to hear opening arguments for a long time.

That is, of course, if Mohammed doesn't attempt to plead guilty to capital charges so he can be executed -- his stated desire in a quest for martyrdom.

Three of the Sept. 11 defendants, including Mohammed, represented themselves before the military tribunal, but it is unclear what strategy they will adopt in federal court.

When the case was removed from the military system Friday, a military judge was still considering whether two of the defendants, Ramzi Binalshibh and Mustafa Ahmed al-Hawsawi, were mentally competent to represent themselves, despite the objections of their military counsel.

The issue of self-representation will have to be resolved again in federal court, but for all five defendants. And there are likely to be lengthy proceedings to determine whether the defendants are fit to represent themselves.

As indigent defendants, the five are entitled to a federal public defender and one or more "learned counsel," or lawyers with significant experience in death penalty cases, because the men are likely to face capital charges.

But they have a constitutional right to act as their own attorneys. If they do so, they will still be assigned shadow or advisory counsel with security clearances because Mohammed and the other defendants will not have the right to review the classified evidence.

The American Civil Liberties Union and the National Association of Criminal Defense Lawyers, which together helped organize the defense of Mohammed and the others at Guantanamo Bay, are arguing that "continuity of counsel" is essential.

"The lawyers -- both military and civilian -- who have devoted so much to these cases and the cause of justice should remain at the side of their clients -- particularly those who have established relationships of trust and confidence," said a statement from the NACDL. "This too is a fundamental component of the Right to Counsel."

Once a defense team is formed, among the first motions may be a request for a change of venue because of the difficulty of finding an impartial jury in a city that was attacked Sept. 11.

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