[Ppnews] The Empty Chair at Guantánamo
Political Prisoner News
ppnews at freedomarchives.org
Tue Oct 28 19:43:28 EDT 2008
October 28, 2008
Big Problems for Prosecutors
The Empty Chair at Guantánamo
By ANDY WORTHINGTON
Now heres a problem that anyone with half a
brain could have seen coming. On Monday the
second trial by Military Commission at Guantánamo
-- in other words, the second US war crimes
trial since the Second World War, following the
underwhelming trial of Salim Hamdan this summer
-- opened not with a bang, and not even with a
whimper, but with complete silence.
The defendant, Ali Hamza al-Bahlul, a 39-year old
Yemeni, is accused of working as al-Qaedas
media director and being a bodyguard for Osama
bin Laden. He has, moreover, accepted in
pre-trial hearings that he is a member of
al-Qaeda, and his prosecution should, therefore,
have been an opportunity for the administration
to demonstrate that the War on Terror -- for
the most part, a brutal, law-shredding fishing
expedition -- has at least produced one success
for the Commissions architects (Vice President
Dick Cheney and his chief of staff David
Addington) to trumpet before next weeks Presidential elections.
Unfortunately for the administration, this rosy
picture has been soured by al-Bahluls refusal to
take part in his trial. As the court convened, he
sat in silence as his appointed military defense
lawyer, Maj. David Frakt, announced that
al-Bahlul was boycotting the trial, and that he
had two specific reasons: firstly, because the
judge had repeatedly denied his requests to
represent himself, and secondly because he did
not wish to be represented by a military lawyer.
Noting that he was obliged to respect his
clients wishes, Maj. Frakt then asked to be
relieved, and when the judge, Air Force Col.
Robert Gregory, refused, he declared that he too
was unable to participate. I will be joining Mr.
al-Bahluls boycott of the proceedings, he said,
standing mute at the table. He then refused to
answer any further questions from Col. Gregory.
In response, Col. Gregory attempted to argue that
Maj. Frakt was obliged to participate, as the
Associated Press described it, and insisted, The
commission will not proceed with an empty defense
table. However, he then appeared to concede that
it was not in his power to force Maj. Frakt to
represent al-Bahlul, and determined to proceed
with a trial based solely on evidence provided by
the prosecution, even though this will do nothing
to convince any objective observer that justice will be seen to be done.
Whats particularly bizarre about this empty
trial is that the government should have known
that this was what would happen. Ever since
al-Bahlul was first put forward for trial by
Military Commission (in the trials first
incarnation, which was struck down as illegal by
the Supreme Court in June 2006), he has tried to
represent himself, and has boycotted the
proceedings when prevented from doing so. Back in
2005, this prompted a crisis for his
military-appointed lawyer, Army Maj. Tom Fleener,
who was obliged to represent him under the Commissions rules at the time.
Speaking to GQ last summer, Maj. Fleener
explained, The concept of compelled
representation has always bothered the crap out
of me. You just dont force lawyers on people.
You dont represent someone against his will.
Its never, ever, ever done. Sean Flynn of GQ
then explained, The reason its never done is
that it undermines the concept of a fair trial.
When a mans life or liberty is at stake, he gets
to decide who will speak for him. Thats the way
American courts work, have always worked. To
eliminate that right is to begin to transform a trial into a pageant.
Maj. Fleener, like his colleague, Navy Lt. Cmdr.
William Kuebler, who was assigned to represent a
similarly uncooperative prisoner, Ghassan
al-Sharbi (and who is now the lawyer for Omar
Khadr), knew that the Commissions were in fact
nothing more than a pageant. As Fleener explained
to Flynn, I hated the fact, still hate the fact,
that we were making up a trial system to convict
people after wed already decided theyre guilty.
I hated that as a country we were doing that. I
didnt like the fact that we were violating the
rule of law, and that what we were doing as a country was just
The two men, united by their considered opinion
of the Commissions, and of the unpleasant role
into which they had been thrust, held long
conversations about the trials. Over time,
Kuebler explained, we figured out were the
linchpin in this process. They want to have these
bizarre trials, they dont want to let the
defendant see secret evidence -- so the one thing
they need is us. The government wanted this
attorney-client thing to work. They really did.
Its an important part of the show.
Fleener added, Only the government benefits if
we do a bang-up job. The administration believes
the commission process will ultimately justify
the detentions. They know they cant just hold
people; they dont want to take the political
heat. So they rigged the rule of law. And because
its rigged, the only thing thats in play is the
appearance. And as Flynn added, the detainees
know it, which is why they dont want to go along with a charade.
Fleener continued: At the end of the day, thats
how these guys look at it: If Im going to get a
life sentence -- or a death sentence -- Id
rather get one in this weird, disgusting system
that everyone knows is a weird, disgusting system
than have some military lawyer up there dancing
and juicing it up and making it look like its not rigged.
As a result, Fleener realized, as Flynn put it,
that he had to return to active duty --
specifically, to represent al-Bahlul. Or more
accurately, to be the lawyer al- Bahlul would try
to fire, the proxy through which an alleged
terrorist could attempt to preserve the right to choose his own counsel.
Fleeners one and only encounter with al-Bahlul
was on January 11, 2006, just before a pre-trial
hearing, when he explained why he didnt wish to
be represented. In the hearing, al-Bahlul
explained, as he had during his only other
hearing 17 months before, that he was boycotting
the proceedings, and the judge, Army Col. Peter
E. Brownback III, then motioned for Fleener to
move up the table to represent him. The following exchange then took place:
Fleener: Sir, is this an order? Should I consider it an order?
Brownback: Do you need an order?
Fleener: I believe I do, sir.
Fleener was not being difficult for the sake of
it. The problem was not just that he was being
ordered to represent a client who didnt want to
be represented, which is unethical; it was also
that, outside of the specific context of the
Military Commissions, in the legal world outside
Guantánamo to which Fleener also belonged, he
could be punished for doing so. As Flynn
explained, The defendant can sue for
malpractice, and the bar can impose sanctions,
even take away his license to practice. He
added, An order to represent al-Sharbi and al-
Bahlul, then, would also be an order for Fleener
and Kuebler to violate their professional ethics;
by obeying their superiors, they risked disobeying the rules of the bar.
This conflict was never resolved, as the Supreme
Court stepped in, and Fleener and Kuebler were
not required to represent al-Bahlul and al-Sharbi
again. However, it was clearly such a significant
problem that when the Military Commission system
was revived by Congress in the fall of 2006, it
included the following: The accused shall be
permitted to represent himself, as provided for by paragraph (3).
This appeared to address the ethical dilemmas
faced by Fleener and Kuebler, but as Flynn noted,
there were reasons to be skeptical, to suspect
that the provision wasnt as clear as it seemed:
The paragraph (3) it referred to was a list of
caveats that allowed self-representation to be
revoked if the defendant didnt behave to the
presiding officers liking. So what would happen
if a mans idea of representing himself was to
boycott his trial? Would a lawyer be forced on
him then? That wasnt clear at all.
What happened, as was revealed on Monday, and as
was telegraphed in May, when al-Bahlul attended a
pre-trial hearing for his Military Commission
(Mk. II) and again boycotted it, was that another
military lawyer -- this time Maj. David Frakt --
would face the same dilemma faced by Maj. Fleener
and Lt. Cmdr. Kuebler in 2005 and 2006, and would
again insist on his right not to compromise his
ethical obligations by representing an unwilling client.
The empty chair -- a symbol of lop-sided justice
if ever there was one -- is the inevitable
result, but as I stated at the beginning of this
article, anyone with half a brain -- or the
current US administration -- should have seen this coming.
Andy Worthington is a British historian, and the
Guantánamo Files: The Stories of the 774
Detainees in America's Illegal Prison' (published
by Pluto Press). Visit his website at:
He can be reached at:
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk
522 Valencia Street
San Francisco, CA 94110
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