GUANTANAMO BAY, CUBA — A military judge Wednesday strongly advised two accused co-conspirators in the Sept. 11 attacks not to represent themselves in their upcoming trial because their defense would suffer from several factors, including a lack of access to the classified evidence that the government plans to use against them.
"It would be best for you to accept the assistance of counsel. If it sounds as if I am trying to talk you out of representing yourself, that would be accurate," Judge Ralph H. Kohlmann told one of the defendants, Mustafa Ahmed Hawsawi, who the government says was an Al Qaeda paymaster in the 2001 attacks on New York and the Pentagon.
Kohlmann, a Marine colonel, had similar advice at a second military commission hearing later in the day for Ali Abdul Aziz Ali, who also is charged with being a financial conduit between Al Qaeda leadership and the Sept. 11 hijackers as they trained in the United States.
Both men said at their June 5 arraignment at the naval base here that they wanted to represent themselves, as did the plot's self-described mastermind, Khalid Shaikh Mohammed, and the two other alleged plotters. At the time, Kohlmann allowed Ali to do so, at least for the time being, but said he was concerned that Hawsawi may have been coerced into firing his defense lawyers during a pre-hearing conversation with Mohammed.
Kohlmann told both men that they could face the death penalty if convicted and that it would be all but impossible for them to defend themselves in such a protracted, complicated legal battle without experienced lawyers.
Without a legal team on the outside, Kohlmann told them, they wouldn't be able to communicate with potential witnesses or perform other important administrative and investigative duties because they are locked up in a maximum-security facility. And they would have to draft complicated opening and closing statements and legal motions without any legal training or access to much of the case materials that specially approved lawyers would have, he said.
"All of these things are usually done in a trial better by a lawyer with special knowledge and experience with the laws and procedures," Kohlmann said in separate comments to both men. "In addition, you will not be given access to classified materials before trial because you lack the security clearances, [which] would severely hinder any effort by you to represent yourself."
Both men sat impassively in the sterile courtroom as the judge gave his advice. Both responded calmly and methodically, with Hawsawi using an interpreter.
The judge noted that prosecutors had filed a motion the day before the hearing in which they too urged the judge to warn the accused about the hardships they would encounter by representing themselves, especially the lack of access to classified evidence.
Although the men are slated to be tried together, each of them has at least two military lawyers appointed by the Pentagon's Office of Military Commissions and several civilian lawyers paid through the American Civil Liberties Union's John Adams Project.
In the past, military commission officials have said that the so-called high-value detainees would get access to the classified information gathered against them, but only once the trial was underway. Army Col. Lawrence Morris, the chief prosecutor, said that Kohlmann's comments were not inconsistent with that policy.
Some defense lawyers, including Hawsawi's, said that lack of access to the evidence was one of many unfair and possibly unconstitutional obstacles that the government had put in the way of the five men, even as it claimed publicly that they would be given a fair and transparent trial.
Kohlmann ordered the hearings for the two men, and three more set for today, so that he could ask each of them separately whether they were unduly influenced by Mohammed, who said at the group arraignment that he wanted the men to coordinate their defense and, ultimately, "martyr" themselves -- in other words, ensure that they all received the death penalty.
Army Major Jon S. Jackson, Hawsawi's chief appointed defense lawyer, helped trigger the hearings by saying that his client was visibly shaking and had been intimidated by Mohammed into saying he wanted to fire his lawyers.
But on Wednesday, Hawsawi at first said he could not recall whether Mohammed had said anything to intimidate him. Ultimately, both he and Ali insisted that they had not been coerced, with Ali saying that it was all a misunderstanding based, in part, on a translator's mistakes.
"Nobody is in a position to give such an order," Ali told Kohlmann. "I'm a free human being. I'm not a slave."