April 26, 2006 – Defendant Testifies Before the Military Commissions Regarding Confinement

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 27, 2006
Another Guantanamo Detainee Asks to Represent Himself
The military commissions continue without any clarification on what laws apply to the proceedings. Today, in the last of the proceedings scheduled for this week, Ghassan Abdullah al Sharbi told the Presiding Officer, Navy Cpt. Daniel E. O’Toole that he wanted to represent himself. O’Toole, unsurprisingly denied his request, but once again issued his decision without any reference to legal authority.

Al Sharbi is a short slight man with long black hair and a long black beard. He came into the commission room wearing his tan Guantanamo issued prison clothing. In response to Cpt. O’Toole’s concern that his clothing may prejudice the commission members once they are present in the room, al Sharbi said that he wanted to wear what he has been wearing for the past four years while at Guantanamo. He then (with a laugh) mentioned that he actually missed his orange prison issued clothing.

Early on in the proceedings Cpt. O’Toole informed al Sharbi of his rights to counsel –that he would have a detailed military defense counsel of his choice and that he could choose a civilian lawyer as well to represent him. When asked his desires as to legal representation, al Sharbi said that he did not want to be represented by a detailed military defense counsel and that he “would like to represent himself.”

If there was a poster child for self-representation among the commission defendants, it would be al Sharbi. Al Sharbi was polite and well spoken throughout the proceedings. (In fact, when issuing his ruling on this issue, Cpt. O’Toole found that al Sharbi was well-educated and willing to be polite.) Al Sharbi said today that he would not be disruptive and that he wanted to make the proceedings “short and easy.” He then informed us that he had “fought against the United States,” that he was “proud” of what he did, and that he was willing to pay the price and in fact it would be an honor for him to spend time in prison for what he did. He further said that “I did not come here to defend myself” and that he was going to just say what he did and the commission could then make its decision.

After spending some time discussing the issue of legal representation with al Sharbi, Cpt. O’Toole decided that if al Sharbi did indeed have the right to self-representation, he was still not qualified to represent himself. And in addition, O’Toole found that Military Commission Order 1 requires that military commission defendants have a detailed military defense counsel. Therefore, he was denying al Sharbi’s request. O’Toole then asked al Sharbi’s detailed military defense counsel, Lt. William Kuebler to move ahead with the representation. Lt. Kuebler at that time informed the Presiding Officer that he had an ethical conflict, based on guidance from the State Bar of California where he is admitted to practice law which said he could not represent al Sharbi given al Sharbi’s rejection of his legal representation. Kuebler also was expecting guidance from the Navy Office of the Judge Advocate General on his ethical obligations. O’Toole asked Kuebler to file a motion on the issue and scheduled arguments on the motion for May 17.
As with yesterday, Cpt. O’Toole made a decision on a legal issue without providing any legal basis for his determination. From what he said in the commission room, it seemed that O’Toole was applying a competency standard in order to determine whether al Sharbi could represent himself. But he never actually clarified what legal standard he was using or under what legal authority he was basing his decision. Apart from citing Military Commission Order 1, there was no discussion of the large body of jurisprudence under U.S. domestic law and U.S. military law on the issue of self-representation. (Note that the U.S. Supreme Court is currently considering the issue of whether denial of counsel of choice entitles a criminal defendant to a new trial.)
Al Sharbi has put one of the problems with the commissions in sharp relief. Today al Sharbi claimed that he had fought against the United States. This claim has not yet been proven to be true, but even if it was, even if al Sharbi had committed legitimate crimes against the United States, the process by which he is tried needs to ensure that the proceedings abide by all of the United States’ legal obligations, and are fair. Robert Jackson in his closing argument to the Nuremberg tribunal said: “Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say.” That statement is even truer today. The world and Americans are watching how the United States—a country which was at the forefront of developing and implementing international human rights standards around the world—is prosecuting these ten individuals at Guantanamo (not to mention detaining the remaining 480 at Guantanamo and thousands in Afghanistan and Iraq). And sadly, these proceedings continue to fall short of those legal standards.

As today is my last night at Guantanamo, I wanted to extend my thanks to the Department of Defense and in particular to all of the individual military personnel who make it possible for us to be on the island. And I wanted to thank the American Constitution Society for hosting this blog.

Published on April 26, 2006


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