January 12, 2006 – Boycott – United States v. Al Bahlul

Military Commission Trial Observation

Human Rights First, at the invitation of the Department of Defense, is observing the military commission proceedings at the U.S. Navy Base at Guantanamo Bay, Cuba.

Priti Patel is a lawyer with Human Rights First’s U.S. Law and Security Program.

Avi Cover is a Senior Associate of Human Rights First U.S. Law and Security Program.

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Boycott – United States v. Al Bahlul

January 12, 2006

Ali Hamza Ahmed Sulayman al Bahlul may have offered the military commissions at Guantanamo their biggest challenge yet: he announced that he would boycott the military commission proceedings. The alleged al Qaeda media specialist had previously declined legal assistance and had stated he wanted to represent himself in the proceedings. When he was allowed to speak by the presiding officer, Col. Peter Brownback III, al Bahlul offered “causes and circumstances” for why he would not participate in either Wednesday’s session or in any future proceedings. For about ten minutes everyone in the commission room fell silent as al Bahlul, a slight man who measures not much more than five and one-half feet and has a full beard and a short head of hair, spoke quietly and deliberately. He denounced the United States as an enemy of Muslim nations, for its support of Israel, and for denying to him the right to be represented by a non-American lawyer. At the end of his statement al Bahlul raised a small piece of paper above his head and waved it slowly for all in the commission room to see, saying, “muqataa,” and then in English, “boycott, boycott, boycott.” Asked by Brownback if he would answer a few questions, al Bahlul motioned with his hands that he had nothing more to say and removed his headphones and placed them on the table. The commission was then quickly in recess.

Upon return to the commission room, al Bahlul’s piece of paper, on which he had written “boycott,” was marked as a commission exhibit. Brownback then ruled against al Bahlul’s request to represent himself, offering “two separate and distinct reasons.” First, Brownback said, al Bahlul was not competent to represent himself because someone who boycotts the proceedings cannot go forward pro se. The problem with this reasoning is that al Bahlul was apparently under the impression that his request to represent himself had already been denied. The second reason, Brownback stated, was based on the President’s military order and other military regulations, that require al Bahlul to be represented by assigned military counsel. This, of course, goes to one of the many problems with the commission rules and one of the ways in which they have been out of step with our American legal system: as Maj. Tom Fleener, al Bahlul’s detailed counsel put it, “For four years they wouldn’t let detainees have lawyers; now they’re shoving one down his throat.”

The rest of the morning’s proceedings were a battle between Col. Brownback and Maj. Fleener over what Fleener was obligated to do. The lines were drawn from the start. Fleener had not been sitting at the defense table, and instead sat behind it, respecting al Bahlul’s wish to represent himself. When Fleener was told to move up to the counsel table after Brownback ruled that al Bahlul could not represent himself, Fleener asked, “Is that an order?” “Do you need an order?” inquired Brownback. “Yes.” After then presenting his qualifications as a defense counsel, Fleener moved to withdraw, stating what the whole commission room knew: that al Bahlul did not want him as his lawyer, that Fleener believed himself ethically obligated to withdraw, and that representation of a person against his wishes also might violate Fleener’s duties under state bar ethics rules. The presiding officer and defense counsel disagreed on what an Army Standards of Conduct ruling on this issue had said and after much dispute over when and how Fleener had sought ethics opinions which had not been received yet, Brownback denied Fleener’s request to withdraw.

Fleener then sought to abate the proceedings by challenging Col. Brownback’s authority to preside over the proceedings alone; Fleener argued that the President’s military order required all commission members to be present, in direct conflict with the August 31, 2005 Military Commission Order No. 1, which requires only the presiding officer. In cases of conflict, the presidential order should prevail. But Brownback refuse to abate the session, saying it could move forward while waiting for review of the challenge.

Thankfully, Col. Brownback did grant Fleener’s request to hold off on voir dire (the pre-trial process in which members of the commission – the jury – are questioned about whether they could render an impartial verdict). Brownback insisted in fact that Fleener be provided additional legal assistance as he took note of the great disparity of resources between defense (Fleener was all alone) and prosecution (with four prosecutors). It’s unclear when these proceedings will resume to permit voir dire and other matters, though February seems possible.

United States v. Khadr

As Omar Khadr was brought into the commission room, he seemed to age more than four years before our eyes in a split second. No one had seen a picture of him in all this time. He has grown a lot during his teenage years in Camp Delta, standing about six feet now, with a curly beard, shaved head and squinting eyes. He smiled as his civilian lawyer, Muneer Ahmad, warmly shook his hand, and immediately began to talk with him at the defense table. Khadr’s military counsel, Capt. John J. Merriam, hurriedly prepared documents. This time, the presiding officer was Marine Col. Robert Chester. Chester has a very different style from Col. Brownback and proceeds much more slowly it seemed.

The issues in this case also dealt primarily with legal representation – this time about Khadr’s request for a different military defense lawyer and the obligation of the commission to halt proceedings until one is detailed. Merriam wanted a continuance of the trial until the other lawyer was detailed. Merriam argued that the right to counsel would be a “hollow right” if Khadr were forced to appear, enter pleas, and have counsel conduct voir dire when the government had not yet acted on his request for different representation. Chester ultimately ruled that Khadr could reserve voir dire and defer pleas, resolving it is hoped, some of the defense team’s concerns.

Near the end of the proceedings, Mr. Ahmad raised another concern – inappropriate remarks to the press that chief prosecutor Col. Morris Davis made the day before concerning Mr. Khadr,. Ahmad argued that these comments violated the prosecutor’s ethical obligations under military law and under state bar ethics rules. Mr. Ahmad suggested two possible remedies would include an order that the prosecution refrain from making these sorts of comments and a retraction of the comments.

Looking over some of the comments in the press, Chester was clearly concerned, though he admonished both sides for trying the case in the press as opposed to in the commission room. Chester asked the parties to brief the issue overnight and said he would conduct a hearing on the matter on Thursday.

Chester’s decision was a startling one and raises some fascinating questions – Defense Secretary Rumsfeld and President Bush have made similar prejudicial remarks about detainees held at Guantanamo. (Also, the military commission orders require press statements by counsel to be reviewed in advance.) If Davis is found to have acted inappropriately, it does not seem a far leap to say that detainees tried under these commissions can’t get a fair trial when the final reviewing authorities have made similar statements. On the other hand, it’s hard to imagine Chester abiding all of the prosecutor’s comments. Chester seems firmly committed to the notion that, as he said in the commission room, the prosecution has an “obligation to ensure justice is served.” We will have to wait and see.

In many ways the issues in both cases today are difficult ones, though not unusual in any regular court. Application of the law on self-representation and the defense lawyer’s obligations can be challenging. Choice of counsel and prosecutorial obligations regarding publicity can also be complicated. Of course any difficulty is compounded when the matters are litigated not in a court room, but a commission room. The issues are trickier when it’s not clear what law governs – military commission law, the code of military justice, the Constitution?

In an odd way, despite all of the teeming chaos today, I can’t help but think that Mr. al Bahlul and Mr. Khadr were in some respects better off today than their fellow five hundred or so other detainees who languish in Camp Delta, less than 10 of whom have been charged. These two have been allowed to speak (one quite powerfully) and were heard; they have dedicated counsel who fought for them; and there are people who are fighting to give them justice in an unjust system – indeed they are challenging the system. But I still think it would be better if these military commission proceedings had not taken place, given all their flaws and questions about their legality. Military commissions are a grave undertaking that should await the Supreme Court’s imminent review of their legality.

Finally, I also can’t help but question why – if the other five hundred or so detainees are the “worst of the worst,” as the government claims – they haven’t been charged. For now, their fates are unknown and their detention indefinite.