April 7, 2006
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.
Priti Patel – a lawyer at Human Rights First in the U.S. Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.
Observing the military commission proceedings this week – today is the last day of hearings – has convinced me that it is not only the accused who are on trial here, but also the United States’ detention and interrogation policies over the past four years. And I am not sure the United States’ detention and interrogation policies are faring all that well. But before I get to that, let me tell you what happened today.
The al Bahlul Hearing
This morning I observed Ali Hamza Ahmed Sulayman al Bahlul’s proceeding. Al Bahlul was not in the commission room because he had decided, at the last hearing, to boycott the proceedings. Al Bahlul objected to representation by his detailed U.S. military defense lawyer, Maj. Thomas Fleener, and said he would not participate in the proceedings until he could represent himself or have a Yemeni lawyer represent him.
At issue today was whether al Bahlul has a right to self-representation. On behalf of al Bahlul, Maj. Fleener submitted a motion arguing that al Bahlul did have that right as long as he also had standby military defense counsel. There were three other briefs filed by non-parties in support of al Bahlul’s position, from the National Institute of Military Justice, Cpt. William Kuebler who represents Ghassan Abdullah al Sharbi, and private attorneys and law professors from Wyoming, where Maj Fleener is licensed to practice law.
Maj. Fleener argued that the President’s Military Commissions Order requires commission proceedings to be “full and fair” and that the right to self-representation is so fundamental in U.S. law that it has to be available if a trial is to meet the full and fair standard. In support of his argument, Maj Fleener relied on a 1975 U.S. Supreme Court case, Faretta v. California, which found the right to self-representation is supported by, among other things, the Constitution and federal and state statutes. Maj. Fleener also argued that al Bahlul’s right to self-representation could be found in the Sixth Amendment, the due process clause of the Fifth Amendment, U.S. statutory law, customary international law, and U.S. criminal law. In fact, as Maj. Fleener said, ”The only place that a person doesn’t have this right [to self-representation] is the Star Chamber”; he asked Col. Brownback not to “let this place become Star Chamber-esque.”
The government agreed with the defense that al Bahlul has a right to self-representation. The only disagreement between the two sides was whether Col. Brownback had the authority to decide the issue given that the Appointing Authority had denied al Bahlul’s request for self-representation on June 14, 2005. The prosecution argued that Col. Brownback could not overrule the Appointing Authority, but suggested that he should send the question back to the Appointing Authority for reconsideration, together with his own finding that al Bahlul has a right to self-representation.
After he heard both sides’ arguments, Col. Brownback said he would issue a ruling “in due course.” Before he ended the proceedings, Col. Brownback reiterated his request that Maj. Fleener be provided additional military defense counsel to assist him.
Though Maj. Fleener did not bring this quote from Faretta to Col. Brownback’s attention, I found it telling: Justice Stewart wrote for the majority of the Supreme Court justices that, “To force a lawyer on a defendant can only lead him to believe that the law contrives against him.” A finding that there’s no right to self-representation in the commission proceedings goes to the heart of the proceedings’ legitimacy.
The Omar Ahmed Khadr Hearing
The second hearing I observed today was that of Omar Ahmed Khadr. His defense counsel had made an oral motion on Wednesday, asking that Khadr be moved from Camp 5, where he had been transferred on March 30, 2006, to Camp 4, where he was held prior to his transfer. Khadr had alleged that he had been moved away from other detainees because he was being punished for his participation in the proceedings. Today, Khadr’s defense counsel withdrew the motion after conversations with the prosecution. Defense counsel said they no longer believed that Khadr’s transfer was a form of punishment, and that the conditions of his confinement were not interfering with their access to him. Khadr’s counsel informed us after the hearing that Khadr was no longer boycotting the proceedings.
Some General Thoughts
The proceedings this week showed how inextricably tied the military commissions are to the larger issue of U.S. detention and interrogation policies at Guantanamo Bay over the past four years. When Presiding Officer, Col. Ralph Kohlmann, informed Binyam Ahmed Muhammad yesterday of his right to counsel, Muhammed said, “I have been four years without rights and now all of the sudden I have rights? What are these rights…where did these rights come from?” Muhammad has a point. The ten defendants who have been brought before the commission have, in some cases, been held at Guantanamo for four years; some of them spent at least two years without access to counsel. In this context, it is all the more important for the United States to ensure that defendants do indeed receive full and fair trials.
Despite the problems plaguing the commissions, including the lack of clarity on what laws, if any, apply in these proceedings, and what rights, if any, the accused have, the lawyers—defense, prosecution and presiding officers—are working with laudatory dedication, and, especially in the case of defense counsel, with considerable courage.
Before I sign off, I again would like to extend my thanks to the Department of Defense for inviting Human Rights First to observe these proceedings and for their assistance with all the logistics necessary for us to be on the island. And I would like to thank the American Constitution Society for hosting our blog. The next set of hearings is currently scheduled for the week of April 24, when the commissions plan to hear the cases of Sufiyan Barhoumi, Ghassan Abdullah al Sharbi, and Jabran Said bin al Qahtani.
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