Representing the Unwilling
Nicole Barrett – Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.
Guantánamo Bay, August 15, 2008: The proceedings against Ali Hamza Ahmed Sulayman al Bahlul, Osama bin Laden’s alleged media director, were supposed to begin at 9 am. At about 9:10 am, various military officers and personnel began milling about, walking in and out of the courtroom. One officer whispered to another, “He wants his boycott sign. We can’t find it.”
At 9:40 am, al Bahlul entered the courtroom escorted by four young guards. He wore a baggy beige shirt, baggy beige pants and flip-flops. The guards holding his arms were wearing plastic surgical gloves. Air Force Major David Frakt, al Bahlul’s standby counsel, sat at the defense table, a change from the May 7, 2008 proceedings, when al Bahlul sat alone at the defense table and motioned to Frakt to sit when he stood to address the court.
Judge Ronald Gregory entered the room and introduced himself as the new judge replacing Judge Brownback, who recently retired. The proceedings began in a routine manner; even the Arabic translation that was broadcast into the courtroom at al Bahlul’s request seemed to be running smoothly.
Then al Bahlul began to speak, and the proceedings changed. He had several complaints for the judge. Al Bahlul wanted the original Arabic version of his boycott sign that he had created in 2006 and that listed his nine “political and legal reasons” for boycotting the military commission proceedings. Prosecutor Army Major Daniel Cowhig said they could not find the sign, although they had been looking for the past half hour. He suggested it might take a day or two to find it. (Because al Bahlul was pro se when he made the sign, it is unclear why the prosecution would have it, as it could arguably be attorney work-product). Al Bahlul asked, “If such a document is lost, what kind of court is this?”
Al Bahlul asked to return to his cell until the original sign was returned to him. Judge Gregory began to advise al Bahlul of the consequences of waiving his right to be present, when al Bahlul interrupted to state that he wanted to return to the courtroom only to hear the final sentence of his trial. He refused to permit Frakt to represent him and asked, “How can I accept this law?”
Al Bahlul offered that, after the lost document was found, it would “facilitate the settlement to take place with the judge to have a fast trial.” Then al Bahlul reasserted his desire to be absent from all sessions except sentencing, adding,“I don’t really care how you will exercise this legal circus.”
Judge Gregory told al Bahlul that, by absenting himself from the proceedings, he would terminate his right to represent himself. Al Bahlul was unmoved. He responded by asking the judge to withdraw his habeas corpus petition, filed in federal court by his cousin as a “next friend” petition. He addressed Judge Gregory, saying, “I, from this place, ask you to cancel the file that is personal to me.”
Ultimately, the judge sent al Bahlul back to his cell, terminated his pro se status and appointed Frakt as his defense counsel. Frakt said he had spoken to al Bahlul before the hearing and told al Bahlul that he would defend him in the manner he desired. Frakt said that al Bahlul had refused to agree to future meetings with Frakt and told Frakt not to do any work on his behalf.
At this point, the pace quickened. Frakt waived all pre-trial motions and stated he was available to go to trial at any time. The prosecution asked whether Frakt was waiving discovery motions. Frakt confirmed that, while the government must still prove its case and provide required discovery, he would seek no additional documents. The proceedings ended without setting a schedule.
Al Bahlul is not alone in his desire to represent himself and boycott his own trial. Several others charged under the Military Commissions Act (MCA) have followed the same tack, including Binyam Ahmed Muhammad, an Ethiopian, and Ghassan Abdullah al Sharbi, a Saudi, both accused of conspiring with al Qaeda. Defense attorneys on these cases have found themselves in a similar conundrum to the one that Frakt now faces. Generally, U.S. domestic and international laws support a detainee’s right to represent himself or to boycott a trial, but exercising both rights at the same time appears to be a new phenomenon. While Congress intensively debated issues of boycott and self-representation in MCA negotiations in 2006, many questions went unresolved.
Some of these questions were raised by today’s hearings. Is Frakt under any obligation to put on a defense case for al Bahlul? This is not a death penalty case, where a defense is required, and the MCA does not appear to require a defense case. What if potentially exculpatory documents turn up, including documents showing that al Bahlul was mistreated or tortured while in U.S. custody? Such evidence is thought to exist. If al Bahlul was tortured, might he lack the mental capacity to waive a defense? MCA Rule 706 allows for an inquiry into the mental capacity of the accused, but the consequences of an incapacity finding are not spelled out.
With already intense criticism of existing due process flaws in the military commission process, wouldn’t a no-defense defense only confirm the view that commission proceedings are designed to convict, rather than provide a fair trial? If the judge orders the defense to put on a case in the interest of justice, what would happen if Frakt refused to follow orders? Does a no-defense defense at the client’s request provide grounds for an ineffective assistance of counsel appeal?
After the proceedings, Major Frakt acknowledged the complexity of the situation. He said that, while he was going to seek advice from his supervisor and from the New Jersey state bar, “I think my obligation is to do what he wants — nothing….Ali al Bahlul is my boss.”