August 26, 2004
A Defendant Asks to Represent Himself
Day Four Despite the best efforts of a lot of well meaning people here, this was an embarrassing day for American justice. The translation issue – the roots of which have been chronicled in each of my previous updates – finally erupted. And, the commission system proved itself to be unprepared for even the most basic test of its effectiveness. Today was the preliminary hearing for Hamza Ahmed Sulayman al Bahlul of Yemen. Mr. al Bahlul is accused of conspiring with Osama bin Laden and others to commit terrorism. His charge sheet describes more than a dozen “overt acts” committed between 1999 and 2001, including training at an Afghan Al Qaeda military camp and preparing videotapes intended to inspire violent attacks against the United States and other countries. He is also alleged to have served as bin Laden’s armed bodyguard. It was a dramatic and eventful day – because of the translation problems, because the defendant said he wished to represent himself, and because the defendant made a sudden and startling statement during the proceedings. He announced that he was a member of al Qaeda and appeared poised to make some additional comment related directly to the attacks of September 11. The proceedings departed from the relative formality of the previous two days when Mr. al Bahlul announced that he wanted to represent himself. Appointed military defense counsel had known of the issue for some time, and had made Col. Peter Brownback, the Presiding Officer, aware that it was coming before the day’s events. The Presiding Officer initially told him that he could not – that the rules required a defense counsel to be a U.S. citizens and a military officer with security clearance. Rather than determining Mr. al Bahlul’s willingness to proceed under the rule as stated, Col. Brownback then tried to engage Mr. al Bahlul in a discussion of whether he was qualified to represent himself, and whether he wanted to argue that the rule should be changed. From my seat in the courtroom (and recalling his fairly open answer about the legality of the commission process as a whole from earlier in the week), it struck me that Col. Brownback was trying to be fair. He had read the rules about self-representation one way, but wanted to leave the door open to a challenge. But the translation issues – and Mr. al Bahlul’s desire for a clear answer on the rules of the commission that have been anything but clear – made the exchange impossibly chaotic and confused. To pick one small example, at one point, the Presiding Officer asked Mr. al Bahlul if he wanted a lawyer from Yemen. The translator gave Mr. al Bahlul’s answer as “I know some law in Yemen.” At that point, Mr. al Bahlul’s assigned defense counsel said that the statement was a mistranslation. A translator retained by the defense counsel said: “My understanding was he knew some people who practiced law in Yemen.” Mr. al Bahlul asked if defense counsel could not interrupt. Far more damaging was Mr. al Bahlul’s sudden comment during an exchange about the concern that self-representation would mean he would not have access to all the evidence against him. After saying he was speaking of his own will, and (as I later learned from one of the Arabic-speaking journalist’s translation) confessions were the best evidence of all, Mr. al Bahlul said: “I am from al Qaeda and the relationship between me and Sept. 11…” He was quickly cut off by Col. Brownback, who instructed the military commission panelists to disregard the comment; since the defendant was not under oath, his admission could not be considered evidence. The prosecution objected to Col. Brownback’s statement, saying that he was misreading the law. Col. Brownback then ordered a recess to meet with counsel on both sides. When the hearing resumed, Mr. Al Bahlul never returned to or expanded on his statement. In the end, the Presiding Officer ordered the assigned defense lawyers to file legal challenges to change the rule. The challenge would need to be addressed to the Appointing Authority, the official in charge of the military commissions. Brownback, at that point, suspended the day’s proceedings pending an answer. I believe the Presiding Officer was trying his best to figure out what the defendant wanted. But it was made impossible by the nature of the proceedings – by the confusing and unclear rules and the unclear authority of the Presiding Officer. These exchanges raised many issues about the preparation for these trials. On the translation front: the English to Arabic and Arabic to English translations have been disastrously poor – poor in a way that have made proceedings, especially today’s, incredibly complicated. This kind of problem in proceedings of this importance are inexcusable. After today’s events, the military is clearly aware of the translation issue. I believe that they now understand that it makes everyone – and the commission process – look bad. And of course, it is unfair. The question now is how quickly they will fix it. The second issue about preparation deals with the defendant’s request to represent himself. This is a completely predictable request for the defendant to make. Yet the commission seemed unprepared to deal with it. The Presiding Officer did not know what to do. In any regular criminal proceeding, requests by the defendant to represent himself are handled as a matter of course. They are not always granted – for example, if the defendant is incompetent or for other reasons – but there is a standard approach to addressing them. The confusion today was because there is no precedent here. There is nothing standard. And what rules there are are made up as we go along. That gives a flavor of the proceedings for the day. Afterward, our group of human rights and legal observers received a tour the commission building. We saw the holding room where the defendant is kept. It’s small with one window that looks into an adjacent room; this window allows the defendant to be observed. The room has a couple of chairs and in front of one chair is a metal plate in the floor, with chains. When the defendant needs to be secured, the chain in this plate on the floor is fastened to his leg chains. There’s a small bathroom without a door right off the holding room. We also saw the defense counsel’s office, and as I’ve chronicled on earlier days, there is a real disparity in resources for the prosecution and defense lawyers. The prosecution counsel’s rooms have already been renovated. As for the defense counsel, they are all in one, not-very-big room. There are four desks pushed up against the wall, and four computers. Some of the lawyers have brought their laptops. One day this week, there were 12 or so people in the room at once. A conference table they had earlier in the week had since, without explanation, been removed. The lawyers are representing different clients and it is pretty awkward to have everyone in one room – not just from a logistical point of view, but from a privilege point of view. The defense counsel should not have to spend the first week of the commissions in one room that’s far too small to meet their needs and with facilities that are inadequate to promoting a vigorous defense. Military commission officials say they are going to fix it. They say that, but it’s not as if this week was a trial run. Despite all that we saw today and throughout the week, this is the real thing.