[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


Now here’s 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-Qaeda’s 
“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 week’s Presidential elections.

Unfortunately for the administration, this rosy 
picture has been soured by al-Bahlul’s 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 
client’s 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-Bahlul’s 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.

What’s 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 don’t force lawyers on people. 
You don’t represent someone against his will. 
It’s never, ever, ever done.” Sean Flynn of GQ 
then explained, “The reason it’s never done is 
that it undermines the concept of a fair trial. 
When a man’s life or liberty is at stake, he gets 
to decide who will speak for him. That’s 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 we’d already decided they’re guilty. 
I hated that as a country we were doing that. I 
didn’t 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 we’re the 
linchpin in this process. They want to have these 
bizarre trials, they don’t 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. 
It’s 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 can’t just hold 
people; they don’t want to take the political 
heat. So they rigged the rule of law. And because 
it’s rigged, the only thing that’s in play is the 
appearance.” And as Flynn added, “the detainees 
know it, which is why they don’t want to go along with a charade.”

Fleener continued: “At the end of the day, that’s 
how these guys look at it: ‘If I’m going to get a 
life sentence -- or a death sentence -- I’d 
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 it’s 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.”

Fleener’s one and only encounter with al-Bahlul 
was on January 11, 2006, just before a pre-trial 
hearing, when he explained why he didn’t 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 didn’t 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 wasn’t 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 didn’t behave to the 
presiding officer’s liking. So what would happen 
if a man’s idea of representing himself was to 
boycott his trial? Would a lawyer be forced on 
him then? That wasn’t 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 
author of 
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

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