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Then Things Got Interesting...

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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April 28, 2006

Although the detainee who appeared in the Commission room today, Saudi citizen Ghassan Abdullah Al Sharbi, speaks fluent English, it has never been more apparent that the detainee and the Commission participants are speaking different languages. In riveting exchanges with Presiding Officer Daniel O’Toole, Al Sharbi made plain that he has fought against the United States, that he is proud of his actions, and that he is prepared to provide a full accounting and accept his punishment but he is emphatically opposed to being represented by a member of the United States military.

The sole issue in today’s proceeding was whether Al Sharbi would be permitted to represent himself before the Commission. He entered wearing prison garb “I want to wear the suit I’ve been wearing for more than four years,” he explained and hardly glanced at his assigned military defense counsel, Lt. William Kuebler. Al Sharbi, who earned a college degree in the United States, firmly and repeatedly stated that he wished to represent himself. “I’m going to make this easy and short for you,” he said. “I fought against the United States. I’m not going or be violent or cause trouble or commotion. I’m going to tell you what I did. I’m proud of what I did.”

The Presiding Officer repeatedly pressed Al Sharbi to acknowledge that he would be better served by counsel particularly because Commission rules permit the prosecution to present evidence that the accused may not see, but his military counsel may. “That is your perspective,” was Al Sharbi’s responsive refrain. “I see him wearing that military suit,” he said, gesturing at Kuebler. “I can’t trust him.”

This issue has arisen before. In denying Ali Hamza Ahmad Sulayman al Bahlul’s request to represent himself before the Commission, the “Appointing Authority,” who appoints and oversees the Presiding Officers, ruled that detainees must be represented by military defense counsel, even against their wishes. So it was somewhat unusual that the Presiding Officer persisted in questioning Al Sharbi as if he were seriously considering granting the self-representation request.

That impression was illusory. After a short recess, the Presiding Officer issued his “findings” once again citing no law and ruled that because Al Sharbi was “not familiar with Commission law,” and was not permitted access to classified evidence, he was not qualified to represent himself, even if such a right existed. (Whether Al Sharbi is “familiar” with the law would have no relevance whatsoever to his entitlement to represent himself under the Constitution or the UCMJ.)

Then things got interesting. Lt. Kuebler reported to the Presiding Officer that he had sought and obtained an ethics opinion from the State Bar of California, where he is licensed to practice, and that California Bar officials had advised him that he may not ethically represent Al Sharbi in these circumstances. He was therefore faced with competing obligations: he was under military orders to serve as Al Sharbi’s defense counsel, but to do so might potentially place his license to practice law at risk.

Presiding Officer O’Toole was plainly irritated, and he reiterated his view that the “fullness and fairness” of the proceedings required the participation of counsel who had access to all prosecution evidence. Nonetheless, he called a halt to the proceedings, and ordered Kuebler to submit a brief laying out his position by noon tomorrow. He will conduct a hearing on Kuebler’s ethical conflict in May. The episode was yet another indication that guidance from the Supreme Court, expected in late June, is sorely needed.

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