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 U.S. "war crimes" trial since the Second World War, following the underwhelming trial of Salim Hamdan this summer – opened not with a bang, nor 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. Ronald 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 … wrong."
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 Jan.y 11, 2006, just before a pretrial 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 pretrial 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 lopsided 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 U.S. administration – should have seen this coming.
