Ramzi bin al-Shibh, a bearded 40-year-old bank clerk from Yemen, faces a federal trial for mass murder that is unlike anything this country has ever seen.
He is one of five men accused of plotting and carrying out the Sept. 11 attacks, and he is at the center of a once-in-a-lifetime criminal case, a trial many hope will provide some closure for a nation still healing from that cataclysmic event more than 11 years ago.
James P. Harrington, one of Buffalo’s most respected criminal defense lawyers, is his lead attorney.
Harrington heads a team of five lawyers representing bin al-Shibh, the man accused of coordinating the attacks, in his death penalty case at Guantanamo Bay, Cuba.
It’s a job Harrington knows many will disapprove of. To start, his client has publicly expressed pride in the attacks that killed 2,976 people.
Yet, Harrington took the case, determined to provide bin al-Shibh the kind of due process that is central to what makes the United States judicial system different, even special.
One big problem for the defense attorney, though: Prosecutors say the U.S. Constitution does not apply to bin al-Shibh.
“It’s the case of a lifetime,” Harrington admits.
“It’s an international case that involves issues few of us will ever have to know or deal with. I’ve been doing this work for 40 years, and this is the right thing to do.”
Few in Buffalo know of Harrington’s involvement in the Sept. 11 case, but at Guantanamo, he’s a lead attorney in what is quickly becoming one of the most important, controversial and unusual trials in the nation’s history.
For instance, Harrington is not allowed to talk about what bin al-Shibh tells him.
He is not allowed to talk about the interrogation techniques used on his client.
He can’t even take his notes when he leaves Guantanamo after talking to bin al-Shibh.
It’s no secret that legal scholars have raised questions about the legitimacy of the military tribunal overseeing the proceedings and the ability of the five defendants to get a fair trial.
“Somebody needs to do it,” Harrington said of the numerous legal challenges filed by the defense. “Somebody needs to raise the cry, and somebody needs to try and force the courts to do what Congress wouldn’t do.”
Harrington is well aware of the hand he’s been dealt.
To hear prosecutors talk, bin al-Shibh is the “9/11 coordinator,” a top aide to Osama bin Laden and alleged mastermind Khalid Sheikh Mohammad, as well as al-Qaida’s chief liaison to the U.S. operatives who carried out the attacks.
Like his onetime roommate Mohamed Atta, the leader of the hijackers, bin al-Shibh was supposed to be on one of the four planes used in the attacks. While living in Hamburg, Germany, he reportedly sent $2,200 to a flight school in Florida, but he was turned down four times for a U.S. visa.
When it became clear bin al-Shibh would not gain entry into the U.S., Khalid Sheikh Mohammad named bin al-Shibh his main assistant because of his intimate knowledge of the plot, according to court documents.
Bin al-Shibh also is believed to be the one who informed al-Qaida’s leaders of Atta’s decision on when to launch the attacks: Sept. 11, 2001.
“The person who thought he’d be the 20th hijacker, bin al-Shibh, is no longer a threat to the United States of America and our friends and allies,” then-President George W. Bush said after bin al-Shibh’s capture in September 2002.
Discovered in Pakistan, bin al-Shibh was moved to a series of “black sites,” secret CIA-supported holding centers around the world, and eventually detained and interrogated in Morocco.
Harrington is severely limited in what he can say about those interrogations, but he’s not shy about describing as torture the methods used against his client.
Even the CIA has acknowledged using waterboarding, mock executions and sleep deprivation during its interrogations of some al-Qaida suspects.
“We can say our clients were tortured, but that’s as far as we can go,” Harrington said. “That’s in the public domain. That’s been acknowledged by the government, not necessarily using the word torture, but they’ve acknowledged our clients were subjected to enhanced interrogation. They’ve acknowledged they waterboarded KSM (Mohammad) 183 times.”
Like his four co-defendants, this is bin al-Shibh’s second trial at Guantanamo. The first one was called off when President Obama took office in 2009, about the same time that a rift developed between bin al-Shibh and his first attorney, Navy Cmdr. Suzanne Lachelier.
Lachelier had raised the issue of bin al-Shibh’s competency and suggested that her client was being given “a psychotropic drug prescribed to persons with schizophrenia.” She indicated it was unclear whether the drug was for schizophrenia or behavior modification.
When bin al-Shibh learned of her comments, he stopped seeing her and, after three years of not meeting with her, dismissed her.
“I refuse that she speaks on my behalf at all, in any way,” Bin al-Shibh told the court in 2008. “She does not represent me.”
Torture, interrogation and confinement are central to the Sept. 11 case and almost certainly will be part of any appeal the five defendants file.
And yet, when it is raised during their upcoming trial – for which no date has been set – it will be done in secret.
“All of that will be classified,” Harrington said. “When that issue comes up, it will be done in a closed setting, in a closed courtroom, with the media and the public not there.”
Harrington cannot discuss in any detail what his client went through or where it took place; because that information came from his client, it’s considered classified.
Pentagon officials insist bin al-Shibh’s every utterance about the Sept. 11 attacks is highly classified. So what his attorneys tell the public or the court must be strictly monitored.
“It is an unreasonable expectation for the public to see classified information,” said Lt. Col. Todd Breasseale, a spokesman for the Pentagon. “And it is an unreasonable expectation for a defense counsel to make public classified information.”
Breasseale, who has met Harrington, said he respects the defense lawyer’s point of view, but he thinks the public needs to evaluate the commission’s fairness based on what happens in the courtroom.
He also is quick to note that this military commission, authorized by Congress in 2009, is far different from the military commissions that Bush created in the months after Sept. 11 and that were later invalidated by the U.S. Supreme Court.
One of the biggest differences is the guarantee that statements obtained through torture or cruel and inhumane treatment will not be admitted into evidence.
“We believe this is both a fair and reasonable process, given the situation,” Breasseale said.
Unlike most of his co-defendants, bin al-Shibh’s interrogations have taken on a higher profile, because of video and audio tapes of bin al-Shibh’s time in Morocco.
The tapes, believed to be the only existing recordings of overseas interrogations, were found under a desk at the CIA. The tapes do not contain any evidence of torture or cruel and inhumane interrogation techniques, U.S. officials say.
Harrington hasn’t seen or heard the tapes and, even when he does, he won’t be able to talk about them because they, too, are classified.
Even before the tapes surfaced, questions arose early on about statements the five defendants made while in custody overseas. Chief among them: Can those statements be used against them during their trial at Guantanamo?
“They’ve publicly said they’re not going to use any information from the time they were in other countries,” Harrington said. “But what they did was, once they brought them to Guantanamo, they waited a few months and brought in new agents, what they call clean agents from the FBI, who took new statements. Those are the statements they’re going to use.” Harrington said those statements will be challenged as well.
At the heart of the controversy over the Sept. 11 trial is the military tribunal Congress put in charge of the prosecutions.
The tribunal – a panel of 12 high-ranking military officers who will hear evidence and decide the fate of the five defendants – has come under criticism because of its unconventional rules and procedures.
Unlike criminal prosecutions in state and federal court, where the Constitution reigns supreme, the prosecution claims the Guantanamo defendants have no constitutional rights. Instead, the cases are being tried under rules and procedures outlined in the Military Commission Act of 2009.
The law was passed by Congress after President Obama, during his first year in office, halted the previous military commission and ordered a top-to-bottom review of the detainee cases. Obama wanted the Sept. 11 trial moved to a civilian federal court in New York City.
“They deserve a trial, but not a civilian trial in the U.S.,” said Leonard A. Castrianno of Amherst, whose son Leonard died in the World Trade Center attacks. “It was an act of war when they hit the towers.”
Castrianno wants the Sept. 11 defendants punished for what they did – he thinks the ideal sentence may be life behind bars – but he also wants to ensure that they have proper legal representation and a fair trial.
Harrington said he understands the need to protect classified information but that Congress went overboard by creating a military judicial process that inhibits everything from attorney-client privilege to bin al-Shibh’s ability to participate in his own defense.
“Now we have this procedure that is under attack, not only by us in the courtroom, but is viewed around the world as unfair and really un-American,” he said. “I recognize there are many people who feel these guys shouldn’t even get a trial. But we’ve always tried to distinguish ourselves as people who believe in due process.”
Perhaps the most vivid example of Harrington’s concerns is the restrictions on how he communicates with his client.
Even when he meets privately with bin al-Shibh, he must surrender his notes before he steps foot off Guantanamo. The notes are put in a safe and later emailed over a secure line to a military office in Arlington, Va.
If Harrington wants to refer to his notes, he has to go to Guantanamo or Virginia.
“If we’re going to give our clients something to read, even if it’s material related to the case, we have to have it reviewed by what they call the Privilege Team,” Harrington said. “Now they claim the Privilege Team is not associated with the prosecution, but it’s still a third party that gets to see whatever we give our clients or what our clients want to give us.”
Convinced that the process is flawed, Harrington and others have challenged its legitimacy in court and cited a recent test conducted by two other defense lawyers.
The lawyers, one of them from Cleveland, wrote on a piece of paper, “LeBron James is a bad man. LeBron James should apologize to the City of Cleveland,” and had their client sign it.
“They brought it out and submitted it to the Privilege Team to determine if it was classified,” Harrington said. “It took two months for that to clear. That kind of highlights the absurdity.”
Like others, Breasseale is quick to remind the public that military commissions are as old as George Washington, who used one to prosecute British Maj. John Andre on charges of spying, and as a recent as World War II, when they were used to try German and Japanese war criminals.
“Military commissions are as American as America itself,” he said. “I’m not convinced what we’re doing is un-American.”
After more than a year on the case, Harrington thinks he’s developed a certain level of trust with bin al-Shibh. That’s an important part of any attorney-client relationship but something he was skeptical of achieving when he started on the case.
He travels to Guantanamo frequently – he was there several weeks ago – and meets with bin al-Shibh about four or five times each visit, usually for about six hours a day.
“I would say we have a good relationship at this point, although it’s always subject to change, given what he’s been through and the difference in culture,” Harrington said. “We have ways of communicating. I have a deadpan sense of humor, and he recognizes that.”
In Harrington, bin al-Shibh also has an attorney who has been eager to make the tribunal and its rules a key part of his defense.
A University at Buffalo Law School graduate who knew of Harrington, a fellow UB Law graduate, recommended him to Lachelier before the Navy commander was removed from the case. She was looking for someone with experience in death penalty cases – Harrington has worked on more than a dozen – and for someone who wasn’t in it for the headlines.
Even after Harrington agreed, he had to go through security clearance, a process that took four months and included everything from a background check to extensive training on what is and isn’t classified information.
While some may wonder why Harrington would take on such an unpopular case, those closest to him never questioned his intentions.
“He knows there are people who are not going to agree with what he’s doing, but to him the law comes first,” said Joel L. Daniels, a criminal defense lawyer and one of Harrington’s close friends.
Defense lawyer Herbert L. Greenman, another close friend, said he wasn’t surprised at all that Harrington took on what others would have refused.
“Jimmy has never shied away from unpopular causes,” Greenman said. “He’s a lawyer’s lawyer and always does what he thinks is right.”
Even more important, perhaps, is Harrington’s steadfast belief in due process, one of the foundations of the nation’s legal system, and his belief that the prosecutions of the Guantanamo Five fall far short of that standard.
For that reason, Harrington isn’t shy about suggesting his client’s trial be moved to a civilian federal court as President Obama once suggested.
“The country would have been better served,” he said. “Part of the problem with a military commission is that there’s this perception and reality that the system is one-sided and doesn’t measure up to our federal court standards.”
He also thinks one of the nation’s most precious ideals, the notion that everyone, even the most heinous criminal, is entitled to a fair trial, is at risk.
“One of the things we have to get back to is the fact that this country is a special place,” he said. “In order to do that, we have to abide by whatever the rules are, whatever the Constitution says, no matter how severe the cases are. It’s a real struggle to try and reconcile this military commission with the Constitution.”
Harrington talked to a lot of people – family, friends and fellow lawyers – before signing on to the case.
He knew then, and still knows, that many people who learn of his involvement will wonder, “How can he do it? How can he represent a defendant who’s accused of killing nearly 3,000 innocent people?”
And yet, he will tell you that the people he crosses paths with are almost always respectful of his role, even if they want bin al-Shibh and the others convicted and sentenced to death.
“Everyone I talk to wants the process to be fair,” he said. “No matter how much we gripe and moan about this country, I think you’ll find the vast, vast majority of people take pride in the fact that we’re supposed to do better.”
Perhaps the most telling example of that is the interaction Harrington has had with family members of Sept. 11 victims.
About 20 such family members attend each court appearance, and they are always asked if they want to meet with Harrington and the other defense attorneys.
“Some have met with us, and every family member I’ve talked with said, ‘We want this process to be fair and we understand what you’re doing,’ ” he said.
Harrington told the story of his trip back home to Buffalo after bin al-Shibh’s arraignment in May. He was on a ferry crossing Guantanamo Bay when several family members approached him and asked to talk.
“Psychologically, the victims’ families want to understand why this happened,” he said. “They want to understand, assuming our clients did this, why they would do it. The only connection they have to that person is through their defense counsel. They crave information. Of course, most of it we can’t give them, but it is a connection.”
Paul Walier, whose sister Margaret Walier Seeliger, a 34-year-old Lake View native, died in the Twin Towers attack, said he has no resentment toward Harrington or the other defense attorneys.
Walier, in fact, suggested that even his sister would have wanted the defendants to have good legal representation and a fair trial.
“She wouldn’t want to live in a country that can unilaterally decide someone’s guilt or innocence,” he said.
Where he and Harrington part ways is in the ultimate punishment facing bin al-Shibh.
“Obviously, I want to see justice done and the people responsible punished,” Walier said. “Even before 9/11, I was a death penalty advocate. It’s not just because my sister was killed. I think these cases warrant the death penalty.”
Harrington knows that no matter how successful he is, bin al-Shibh will never go free.
America would never allow it.
“One of the things about this case is, if our clients are acquitted, they’re not going anyplace,” he said. “They’re in custody for the rest of their lives, which is totally un-American. But that’s the reality, whether it’s Guantanamo or someplace else.”