Lawyers Address Thorny Issues on Eve of Military Commissions Hearings
By Kathleen T. Rhem
American Forces Press Service
NAVAL STATION GUANTANAMO BAY, Cuba, Jan. 10, 2006 Military commissions to try enemy combatants held here for alleged war crimes are intended "to prosecute unlawful conduct, not persecute religious beliefs," a top official with the commissions said here today.
Air Force Col. Morris Davis, chief prosecutor for the Defense Department's Office of Military Commissions, said he and his team intend to prosecute all military commissions cases in a fair and open manner. Hearings in two such cases are scheduled to get under way here tomorrow.
"A lot of folks have questioned whether these proceedings should go forward," Morris said. "We're facing an enemy like we've never faced before, and perhaps the law hasn't adapted to contemplate that enemy. Some say we're making up the rules as we go along, but the law has to adapt to today's environment."
The prosecutor's comments came in the face of tough criticism from human rights organizations and defense attorneys for the two men due in court this week.
In particular, critics decry the trial and continued detention of Omar Ahmed Khadr, a Canadian teen accused of killing a U.S. serviceman and wounding several others in Afghanistan in 2002. Khadr was 15 at the time. His civilian defense attorney, Muneer Ahmad, a law professor at American University, today called on the Canadian government to protest Khadr's detention and trial at Guantanamo Bay.
Davis was critical of press reports that create "a sympathetic picture of this poor kid who's all but blind in one eye."
"Well when we get past this defense facade of, 'It ain't fair,' and we get to the facts, you'll get to hear from (former Army Sgt.) Lane Morris, who is not almost blind in one eye, he lost an eye because of Mr. Khadr," Davis said.
He spoke of news articles that mentioned Khadr's attorney said his client almost died in 2002 and received inadequate medical care after that. "Well (at trial) you'll hear about (Army Sgt. 1st Class) Chris Speer, an American medic who was murdered by Mr. Khadr," Davis said. "You'll see pictures of Mr. Khadr (in which he) looks like he is almost dead, but thanks to the American medics who stepped over their dead friend and tended to Mr. Khadr, he's alive today."
Davis discounted reports that Khadr had been tortured in U.S. custody. "Part of (al Qaeda's) standard training procedure is if you're captured by Western forces, say you're tortured because the West just can't stomach that kind of thing," he said.
He also responded to public statements by human rights experts wondering what prosecuting a minor says about U.S. values. "Well, what it says about who we are is we're going to hold terrorists accountable when they kill American military forces," Davis said.
Davis noted Khadr's age was taken into account in that he is charged with murder and attempted murder, yet prosecutors are not seeking the death penalty. He also noted that 15-year-olds charged with murder in U.S. civilian courts routinely are tried as adults.
The other case scheduled for hearings this week is that of Ali Hamza Ahmad Sulayman al Bahlul, a Yemeni man accused of crafting terrorist propaganda. Attorneys on both sides are working to find a solution to an ethical dilemma the case has imposed on detailed military attorney Army Maj. Thomas Fleener.
In Bahlul's first appearance before a military commission, in August 2004, he asked to represent himself or to be represented by a Yemeni attorney. In July 2005, John D. Altenburg Jr., appointing authority for the Defense Department's Office of Military Commissions, ruled that Bahlul may not represent himself. Under military commissions rules, detailed military defense counsel must represent all defendants. Further, private defense attorneys are required to be U.S. citizens and possess a secret security clearance.
Legal wrangling and delays have kept the case out of court until now, and the Office of Military Commissions in November appointed Fleener as Bahlul's detailed defense counsel. Bahlul has since told Fleener's superiors he will not accept U.S. military representation and does not want to even meet with Fleener.
Fleener explained today that this places him in an ethical dilemma because he cannot mount a capable defense if Bahlul will not cooperate. He also has concerns about the ethical ramifications of forcing representation on a client who has asked to represent himself. He said the right to self-representation is recognized in all levels of U.S. and international law.
"To force a lawyer on a defendant can only lead him to believe that the law contrives against him," Fleener said. "Put another way, to force my representation on Mr. al Bahlul may give the appearance to the outside world that I am here not to serve as Mr. al Bahlul's attorney, rather simply to add some air of legitimacy to an otherwise wholly illegitimate process."
Fleener said he is seeking legal briefs from the state Bar Associations of Iowa and Wyoming, states in which he is licensed to practice law. He said he is particularly interested in Wyoming's opinion on the issue because he was living in Wyoming when he was activated by the Army Reserve to work on this case. "I have a great deal of interest in what the state of Wyoming says about my ability to practice law when I go home," he said.
Army regulations on the conduct of military attorneys are ambiguous on the issue. Army Regulation 27-26, Rules of Professional Conduct for Lawyers, states attorneys should ask to be removed from cases in which they cannot mount an effective case and from cases in which the client refuses representation. However, the regulation also states that "a tribunal or other competent authority" may require an attorney to stay on the case.
Commissions officials may address the issue during tomorrow's hearing.
Fleener stressed that he wants to represent Bahlul and that he feels the man needs an attorney. "It's rarely wise for someone to represent themselves," he said. "But I'm a public defender in the real world, and the 6th Amendment has some teeth to me, and one of those teeth is that a guy gets to represent himself if he wants to represent himself."
Speaking of military commissions cases in general, Davis said, his team is committed to keeping such cases as open as possible, despite rules that allow for closed hearings to present classified evidence. He said he's confident some future cases could be tried without any closed sessions.
"We've got nothing to be ashamed of in what we're doing here," Davis told reporters here to cover the hearings. "So we want you, we want the public, we want the world to see that we're extending a full fair and open trial to the terrorists that have attacked us. We're extending rights to them that they never contemplated."
He noted that both Bahlul and Khadr attended terrorist training camps in Afghanistan. "When these guys went to camp, they weren't making S'mores and learning how to tie knots," Davis said. "They were learning how to make bombs and kill Americans."