April 6, 2006 – Muhammad Challenges the Commissions; His Lawyer Raises an Ethical Objection and Pleads the Fifth
Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.
Priti Patel – a lawyer at Human Rights First in the U.S. Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.
April 6, 2006
Muhammad Challenges the Commissions; His Lawyer Raises an Ethical Objection and Pleads the Fifth
Today, the military commissions process was dealt the latest in a series of challenges to its legitimacy and rules during the hearing in the case of Binyam Ahmed Muhammad, represented by detailed military defense counsel Maj. Yvonne Bradley and civilian defense lawyers, Clive Stafford-Smith and Joseph Marguiles.
Muhammad’s critique of the proceedings was evident from the moment he was escorted into the commissions room by two U.S. military guards. Muhammad, who is 6 feet tall and has a black beard, wore an orange kameez (a long loose fitting shirt with a band collar), orange long shorts, black socks pulled up his shins, black shoes, and a black skull cap. The clothes evoked the infamous orange jumpsuits that came to symbolize the plight of detainees at Guantanamo; Muhammad not-so-subtly linked these commission proceedings with the larger question of U.S. detention and interrogation practices. At one point, the Presiding Officer, Col. Ralph Kohlmann, referred to Presiding Officer Memorandum 16 (which prescribes proper attire for lawyers and the accused), and raised the possibility that the clothing’s resemblance to prison attire could negatively impact Muhammad’s right to be presumed innocent until proven guilty. Muhammad’s defense counsel, Maj. Bradley, replied that Muhammad was choosing to dress in his cultural attire as allowed by Memorandum 16.
Muhammad’s criticisms of the commissions did not end with his attire. Col. Kohlmann allowed Muhammad to address the commission early in the proceeding. Muhammad was articulate and, having spent time in the United Kingdom, speaks English very well. He began by saying he “was not Binyam Ahmed Muhammad,” and that the United States had detained the wrong person. He added that he was innocent and that even after four years of interrogation, torture, and torture in a third country, the United States still hadn’t been able to figure out that he was not supposed to be here. He then claimed that “this [the proceeding] is not a commission, it is a conn-mission; it is out to con the world,” after which he held up a piece of paper on which he had written “CONN-MISSION.” According to Muhammed, the world was watching and “what happens in America goes around the world,” and that other countries such as Canada and Austrialia would soon also establish “conn-missions.” He then stopped talking and propped up his sign against a bottle of water at the defense table. Col. Kohlmann asked him to take down the sign, which he did.
The greatest challenge of the day to the proceedings, though, were about to come, and concerned Muhammed’s ability to represent himself and his military defense counsel’s ethical obligations. When Col. Kohlmann informed Muhammed of his right to counsel, Muhammad said he had a problem trusting an American lawyer because he had been in the direct or indirect custody of Americans for the last four years and horrible things had happened to him during that time. At then end of the questioning about legal representation, Muhammad made the announcement that: “I wish no representation period.” In response, Col. Kohlmann told Muhammad that he had no right to self-representation. But there is nothing in the applicable military commission rules, instructions, or memoranda that clearly denies that right. The only relevant precedent is the presiding officer’s decision denying self representation to Ali Hamza Sulyaman al Bahlul, but at the last al Bahlul hearing, the presiding officer told the parties he would reconsider the issue. Muhammad finally agreed to have his two civilian defense counsel sit at the defense table (until then they had been sitting in the gallery) and represent him in this particular session until Col. Kohlmann made a final decision.
The issues regarding legal representation then took a surprising turn. Maj. Bradley told the commission that due to an ethical conflict, she could not proceed as Muhammad’s detailed military counsel without violating the rules of the Pennsylvania Bar (where she is licensed to practice). She did not explain what the ethical issue was, but it was clear from the proceedings that counsel and Col. Kohlmann had discussed it in a private meeting and through other communications. Col. Kohlmann ordered Maj. Bradley to fulfill her duty to zealously represent her client and told her that if she disobeyed his order, she did so at her “own peril.”
Now, there have been at least two other military commissions cases in which the Presiding Officer has had to order military defense counsel to represent his/her client: in the case of al Bahlul and yesterday in Omar Ahmed Khadr’s case. In each, in the end and under protest, military lawyers did participate in the proceedings – in some fashion – on their client’s behalf. But today, Maj. Bradley did not. Instead, when Col. Kohlmann asked her to begin voir dire – in which counsel question the Presiding Officer to ascertain potential bias – Maj. Bradley stood and invoked her Fifth Amendment right against self-incrimination. It is hard for me to convey on the page the impact of Maj. Bradley’s decision not to participate in the proceedings against her client, despite Col. Kohlmann’s direct order.
Col. Kohlmann then told Maj. Bradley that if she had no questions, he would find that her client waived his rights to voir dire. Maj. Bradley responded that she wasn’t saying yes or no to voir dire, but that she couldn’t move forward as counsel given the ethical conflict she faced in this case. And so it went on: Col. Kohlmann “completed” voir dire, had the government read the charges against Muhammed, and asked Muhammad to enter a plea. At each step, Maj. Bradley spoke only either to invoke the Fifth Amendment or to clarify that she was not waiving her client’s rights, but that she could not move forward given her ethical dilemma. At the end, when Col. Kohlmann asked Muhammed for a plea, Muhammad deliberately moved the microphone away, clearly indicating his refusal to speak. Col. Kohlmann entered in a plea of not guilty.
Col. Kohlmann then took an unusually very long recess. When he came back, he told Muhammad’s lawyers that he would allow further briefing on the issue of the ethical violation. He requested motions on whether the ethical violation could be fixed and, if not, suggested that defense counsel should either move to withdraw or provide the commission with some way to move forward. The issue is now scheduled to be argued the week of June 5, 2006. With that, Col. Kohlmann ended the session.
Tomorrow, I expect some of the same issues regarding self-representation and also issues about conditions of confinement to come up in the al Bahlul case and the Omar Khadr.