In any credible court system, the eve-of-election conviction of an associate of Osama bin Laden for producing promotional material for al-Qaeda, which directly encouraged impressionable young men to join a violent jihad against the United States, would be a resounding victory for the Bush administration. It would stand, however belatedly, as a last-minute acknowledgment that the administration, whose conduct in the "War on Terror" has been widely criticized for its almost indiscriminate extralegal brutality, was at least capable of trying, sentencing, and imprisoning one important al-Qaeda insider for war crimes before handing over the reins of power to a new administration.
But this is Guantánamo, and the court system is anything but credible. After four hours’ deliberation on Friday, the military jury in the trial of Ali Hamza al-Bahlul announced yesterday that it had convicted the 39-year-old Yemeni on 17 counts of conspiracy, eight counts of solicitation to commit murder, and 10 counts of providing material support for terrorism, and the judge, Air Force Col. Ronald Gregory, gave him a life sentence. However, when the trial began last Monday, I explained that, no matter what happened in the days that followed, the trial’s legitimacy had evaporated six months ago, when al-Bahlul refused to take part in what he regarded as a charade.
Under the rules laid down in the Military Commissions Act, which revived the trial system – conceived by Vice President Dick Cheney and his closest adviser, David Addington – after the Supreme Court ruled it illegal in June 2006, prisoners were allowed to represent themselves in the trials. This amendment arose because of ethical problems faced by defense attorneys who were required to represent unwilling clients, because, in the real world outside Guantánamo, compelled representation can lead to the lawyer being punished. As an article in GQ explained last summer, "The defendant can sue for malpractice, and the bar can impose sanctions, even take away his license to practice."
The right to self-representation has already led to some bizarre incidents that have done nothing to improve the administration’s credibility (as, for example, when Khalid Sheikh Mohammed had the opportunity to mock his judge in pre-trial hearings in September), but, more importantly, what no one foresaw – because the MCA was a hideously rushed piece of flawed legislation – was what would happen when prisoners decided to boycott the proceedings entirely.
As was revealed last Monday, in the event of a boycott, the judge would attempt to compel the prisoner’s military defense attorney to represent him, but as this raised the same ethical problems that had plagued the lawyers in the commissions’ first incarnation, al-Bahlul’s lawyer, Maj. David Frakt, responded by refusing to cooperate. "I will be joining Mr. al-Bahlul’s boycott of the proceedings," he said, "standing mute at the table." Before the trial, he explained that he had obtained an ethics opinion from the New Jersey Bar Association, which stated that he was obliged to follow his client’s instructions and was not allowed to cross-examine witnesses or offer any kind of legal argument.
As a result, the trial proceeded like a perfect facsimile of a show trial, with no mention of the torture that al-Bahlul had apparently suffered in U.S. custody. As the Miami Herald reported, suspicions that al-Bahlul had been tortured had led two prosecutors to resign from the commissions’ first incarnation rather than pursue the case, and in 2004 al-Bahlul’s first military defense lawyer, Maj. Tom Fleener, had explicitly told Col. Peter Brownback, the judge at the time, "I believe Mr. al-Bahlul was tortured," adding that it was "going to be an issue" in any trial faced by his client.
Without any of these inconvenient distractions, the prosecution was free to show the film that al-Bahlul had reportedly made, and to present testimony from FBI special agent Ali Soufan, who declared that, in interrogations, al-Bahlul had told him that he "considered it one of the best propaganda videos al-Qaeda has to date," and that Osama bin Laden was "so impressed" with it that he promoted al-Bahlul to become his media secretary.
The prosecution also introduced testimony by videolink from three members of a group of young men from Lackawanna, N.Y. – the so-called "Lackawanna Six" – who had been encouraged to travel to an Afghan training camp before the 9/11 attacks, to "cleanse their sins and clear a straight path to heaven by training for jihad," and had been shown the video. Sentenced in 2003, at the height of "War on Terror" paranoia, to jail sentences of between eight and 10 years for providing "material support for terrorism," the men shed more light on their own failure to embrace terrorism than anything else.
One of the three, Yassein Taher, said that the camp’s recruits "wept and shouted praise when they saw the video," but added that he was shocked, surprised, and afraid to discover that the camp was actively recruiting suicide bombers, and had "a martyrdom sign-up sheet." Another of the men, Sahim Alwan, said that he was shown the video at guesthouses in Pakistan and Afghanistan and was "horrified." "I realized myself that I was in way over my head," he explained, adding, "I wanted to get out of there." Taher and Alwan then stated that they "feigned family emergencies and fled the camp," and Reuters added that the third man, Yahya Goba, "completed the training but refused to pledge loyalty to bin Laden."
What is particularly distressing about al-Bahlul’s trial is not the question of his involvement in al-Qaeda. This is something he has never denied, and as Reuters also reported, during the showing of the film, he "sat at the defense table beaming with pride at some segments and nodding in agreement at bin Laden’s words," and he also "pounded his fist on the table once at the mention of the defilement of Muslim women." In addition, Ali Soufan testified that al-Bahlul had told him, "Everything I believe is in that tape," and Soufan and a Navy investigator, Robert McFadden, testified that al-Bahlul had "told them American civilians were legitimate targets since they ‘are paying taxes and supporting the war against Muslims.’"
Without a case for the defense, however, the administration has been allowed to sidestep the question of al-Bahlul’s treatment in U.S. custody, and has also been allowed to ignore Maj. Frakt’s assertion, made before the trial began, that al-Bahlul "was not an operational combatant," "had no role in planning terrorist activities," and "did not engage in terrorist activities." The administration will crow that it has achieved a significant victory in the "War on Terror," but al-Bahlul’s guilt should have been determined in a federal courtroom, where he would not have been able to score a propaganda victory for al-Qaeda by being convicted in a one-sided trial.
Breaking his silence before the sentence was announced, al-Bahlul made just this point by telling Col. Gregory, "Go ahead with your trial and I will continue with my boycott. You do whatever you want. You have orders from the politicians, and I will not accept it."
