Guantanamo Proceedings Deal With Unique Legal Challenges

A defendant's right to choose his own attorney has become a legal sticking point in the case of an accused al Qaeda propagandist being held here since early 2002.

Ali Hamza Ahmad Sulayman al Bahlul, a Yemeni believed to be a close associate of Osama bin Laden, has asked to represent himself and has refused to speak to his appointed military attorney, Army Maj. Thomas Fleener, an experienced public defender.

In a hearing in his case Jan. 11, Bahlul dramatically said he was boycotting the process. Despite Fleener's stated misgivings, Presiding Officer Army Col. Peter E. Brownback III ordered Fleener to represent Bahlul to the best of his ability even if Bahlul won't cooperate.

"You are (factually and legally) the only counsel that Mr. al Bahlul has," Brownback said. "As he pointed out earlier, it's him against the United States. You are the only one on his side."

Bahlul first asked to represent himself in August 2004. At that time Brownback recessed the case until the issue of self-representation could be resolved. The appointing authority for the Defense Department's Office of Military Commissions, John D. Altenburg Jr., ruled in July 2005 that Bahlul may not represent himself, calling self-representation in a military commission "impracticable."

"An unrepresented accused will be unable to investigate his case adequately because of national security concerns," Altenburg wrote in a July 14 memo. "An accused confined at Guantanamo, Cuba, who is unfamiliar with applicable substantive law, rules of evidence and procedure, will not be able to present an adequate defense."

Further, Altenburg wrote, if a defendant seeking to represent himself didn't clearly understand English, translation requirements would be "exponentially magnified."

Finally, military commissions rules allow for closed hearings to present classified evidence. The rules call for detainees to be excluded from these hearings but for military defense attorneys to be present to represent their clients' interests. This rule would make it impossible for a detainee here to represent himself effectively.

"Self-representation under these unique commission circumstances would be ineffective representation, and result in an unfair proceeding," Altenburg concluded in the memo.

This split from established law for the sake of these military commissions hearings could put Fleener, who is being ordered to represent Bahlul against the detainee's wishes, in a position in which he must choose between violating ethics rules for attorney conduct or of refusing a military order from a superior officer. He is seeking ethics briefs from the two states in which he is licensed to practice law to help him resolve the dilemma.

Chief Prosecutor Air Force Col. Morris Davis dismissed claims that commissions officials were making up the rules as they went along but said special measures were necessary to deal with such nontraditional enemies as al Qaeda and the Taliban. "We're facing an enemy like we've never faced before, and perhaps the law hasn't adapted to contemplate that enemy," he said in a Jan. 10 news conference.

Davis said officials prosecuting war crimes in Nuremberg, Germany, at the end of World War II dealt with similar issues.