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The Words of the Accused

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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January 12, 2006

It’s one of the strange aspects of being here that you spend your entire day hearing and speaking about the detainees, but you never actually see them. So it was almost startling on Wednesday morning when the doors to the Military Commission room swung open, and Ali Hamza Ahmad Sulayman al Bahlul walked in with a military security officer on each arm. Al Bahlul is a diminutive man – maybe five foot six or seven, and no more than 145 pounds – but a large presence. He sat alone at the defense table (his appointed military counsel would not join him there until ordered to do so by the Presiding Officer), and he seemed to be scribbling on a sheet of paper. We’d learn later what he was up to.

After a few false starts – someone had forgotten to give al Bahlul a headset for translation; then someone forgot to turn it on – the proceedings began with a colloquy between al Bahlul and Presiding Officer Peter Brownback regarding the issue of defense counsel. Brownback asked al Bahlul if he understood that the man in a military uniform sitting behind him (Major Tom Fleener) was his lawyer. Al Bahlul responded that he understood that Fleener was being forced on him according to the Commission rules (“I was told,” he said, “that [the rules] change from one minute to another”), but he refused to accept a military defense counsel operating under military rules. He added that he would refuse the services of any volunteer civilian lawyer if he were American. “This doesn’t mean I hate all Americans,” he insisted, repeating himself for emphasis. “It means I regard them as enemies.”

Back in August of 2004, al Bahlul had requested to be represented by Yemeni counsel, and he asked Brownback the status of that request. Brownback stated that the rules would not permit it, and wondered whether al Bahlul still wished to represent himself. Al Bahlul responded that he wished to read a statement. After warning al Bahlul that he might interrupt a statement that he regarded as self-incriminating, Brownback allowed al Bahlul to speak.

What followed was a manifesto of sorts. Al Bahlul announced that he wished to read nine points regarding the “causes and circumstances” of the decision he was about to make. Some offered critiques of the Guantanamo justice system (“Because of discrimination based on nationality . . . . The British detainees were not subjected to military trials, because Britain refused to allow its citizens, even Muslims, to be tried”; because of “the secret evidence issue”); others were harder to follow. “I know I’m detained,” he said, “and they will carry out their laws as they wish. I know there will be a day of judgment before God. Therefore I say to the judge – do as you will. You will rule in this world, and God will provide justice.”

Al Bahlul then declared: “With these nine causes, I am boycotting all sessions, even if I am forced to be present.” He lifted the paper that he had been scribbling on. “I will raise this paper, and this word is ‘boycott.’ I am boycotting every session. This boycott is the result of circumstances that I believe, and it doesn’t matter if you believe them.” Then, in English, he repeated the word “boycott” three times.

Brownback asked al Bahlul if he could make a copy of the “boycott” sign for the record. Al Bahlul said yes, but first he signed and dated it, and wrote “boycott” in English beneath the Arabic. (Later, when a Canadian journalist asked Commission staff if the press could obtain a copy of the sheet, he was told that it might be possible only after security personnel had reviewed it to ensure the absence of “subliminal messages.”) “Please, before you boycott,” said Brownback, “can I ask you one more thing?” Al Bahlul put his hands in front of his face, then removed his headset.

After a recess, Brownback formally denied al Bahlul’s previous request to represent himself – reasoning, oddly, that al Bahlul’s boycott rendered him “incompetent” to represent himself. (This was circular: the Commission’s refusal to permit al Bahlul to represent himself was almost certainly a principal cause of the boycott.) Brownback then ordered Tom Fleener to sit at counsel table and to state his credentials.

Fleener did so and then immediately moved to withdraw as defense counsel, explaining that al Bahlul didn’t want him as a lawyer, and ethical rules required that he not participate against the wishes of a client. Fleener had sought guidance from the state bars of Iowa and Wyoming, where he is licensed to practice, and had not yet received responses. Brownback denied the request. “You are de facto and de jure the only counsel Mr. Al Bahlul has, and as he pointed out earlier, it is him against the United States. You are the only one on his side.” The result is that proceedings in al Bahlul’s case will continue, though al Bahlul refuses to speak to — or even look at — his defense counsel.

The afternoon session was marginally more dignified, largely because Presiding Officer Robert Chester brings a recognizable judicial temperament to the proceedings. But any comparison between these tribunals and those at Nuremberg was shattered by the appearance of Omar Khadr, now nineteen, who was dressed in a red and blue “Roots Athletics” jersey and who looked like a freshman in college. (Chester would later request that “more appropriate” attire be provided to Khadr for future appearances.) Khadr, remember, was fifteen years old when he was captured in Afghanistan following a firefight with U.S. troops in which an American medic was killed; he is charged with murder.

As in the Bahlul case, the preliminary issue revolved around the accused’s choice of counsel. Khadr’s appointed military counsel, Captain John J. Merriam, has never defended a criminal case. It is uncommon, to be charitable, for one’s first criminal defense to be in a murder trial. (Bahlul is also represented by Professors Rick Wilson and Muneer Ahmad of the Washington College of Law at American University. But the Commission rules allow the prosecution to present evidence that neither the accused, nor his civilian counsel, can see. Thus the military defense counsel – who is permitted to see all sensitive evidence – is a critical player in these proceedings.)

Merriam – whose inexperience was outweighed by his tenacity – had previously requested on Khadr’s behalf that a more experienced trial counsel be appointed to Khadr’s case, and he was adamant that no proceedings should take place until that issue was resolved. Chester ultimately acceded to Merriam’s refusal to move forward with pretrial preparations, and it seems likely that a far more experienced defense lawyer will either join or replace Merriam.

But the fireworks came later, when Khadr’s civilian counsel, Muneer Ahmad, sought Chester’s intervention in preventing the chief prosecutor from making prejudicial, extra-judicial comments about the guilt of the accused – comments that violate rules of professional conduct in most jurisdictions. (At a press conference the previous day, Colonel Moe Davis has made some fairly strong statements – suggesting, for example, that Khadr must be spending a lonely Eid without his friend, Osama bin Laden, and repeatedly calling him a terrorist. See this article for a more thorough description of Davis’s remarks.

Ahmad’s motion put Chester in a bind: if he declined to sanction Davis, he’d be approving, at least implicitly, prosecutorial conduct that would be considered unacceptable in most jurisdictions. But if he granted the motion, he’d open the door to much more serious challenges, because Davis’s statements, however troubling, pale in significance to previous statements of President Bush and Secretary of Defense Rumsfeld, both of whom have already declared the detainees guilty. Davis, at least, is a prosecutor: it’s his job, consistent with ethical obligations, to convict Khadr. Bush and Rumsfeld, by Commission rules, are appellate judges: they will review any conviction of Khadr and other detainees, and it’s hard to imagine that they could provide impartial review to detainees whose guilt they have publicly declared.

Ahmad’s immediate reward for filing the motion was an order to submit a supporting brief by 8:00am the following morning, only 12 hours later. After losing a night of sleep, Ahmad lost his motion: at 8:15pm tonight – after a hearing in which a video recording of the press conference was played in the Commission room – Chester ruled, unconvincingly, that Davis’s statements were not improper because they had been offered to rebut defense charges that the Commission was illegitimate and Khadr had been tortured. Ahmad argued the motion brilliantly, even movingly, and if the Supreme Court allows these proceedings to continue, his ongoing and eloquent critique of the system will become an important part of the historical record.

I’ll close this post with an observation: Even in a terribly flawed legal system like this one, a skilled and dedicated defense lawyer can transform the nature of the proceeding. That’s why the Administration attempted for so long to keep any lawyers from coming here. All of the defense lawyers who participated this week, military and civilian, are fighters, and they won’t just throw up their hands at the injustice of the rules. The Administration may yet get the outcomes it wants – after all, it selects the Commission members and makes the rules – but it won’t get the trials that it wants. The defense lawyers will make sure of that.

Before I fly back on Friday afternoon, I’ll write one more post, this one more personal, in an attempt to give some sense of what it’s like to spend a week here.