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NAVAL STATION GUANTANAMO BAY, Cuba, April 7, 2006 – Defense and prosecution attorneys in the military commissions case of an accused al Qaeda propagandist continued the argument here today about whether the detainee has the right to represent himself.
Ali Hamza Ahmad Sulayman al Bahlul, a Yemeni believed to be a close associate of Osama bin Laden, did not appear at his commissions hearing today, leaving Army Maj. Thomas Fleener, his appointed military defender, alone at the table.
Bahlul asked to represent himself in August 2004, but a ruling by John D. Altenburg Jr., the appointing authority for the Defense Department's Office of Military Commissions, ruled that self-representation in a military commission is "impracticable."
Fleener has since filed a motion requesting the presiding officer, Army Col. Peter Brownback III, to allow Bahlul to represent himself, or to refer the issue to Altenburg for review.
Arguing for his motion today, Fleener cited briefs from ethics lawyers and related cases, and said that the right to self-representation is a fundamental common law recognized internationally. Denying the accused detainees the right to self-representation would go against the president's military order governing the detention, treatment and trial of noncitizens in the war on terror, which states the accused must receive a full and fair trial, he said.
"Mr. al Bahlul and I don't want to be together," Fleener said. "We can't help it if the secretary of defense and his delagees have messed this up, but they have. They're not following the president's mandate."
The previous decision to deny Bahlul's request for self-representation was based mainly on the question of whether Bahlul would do a good job, Fleener said. How Bahlul conducts his own defense is not important and not what guarantees a full and fair trial, he said.
"The test isn't whether a guy's going to do a good job, it's whether he has the right," he said.
The prosecution countered Fleener's argument by saying that his briefs came from attorneys, not ethical experts. Also, the compelling interest in this case is that it deals with national security issues, the prosecution attorney said, because classified information will be involved, and issued a reminder that the country is at war.
The prosecution also questioned whether Brownback has the authority to give Bahlul the right to represent himself, since a decision has already been made about this issue.
Brownback said he would rule on the matter of self-representation in due course.
The issue of self-representation has arisen several times throughout the military commissions process. Several detainees have said they do not trust Americans, and specifically servicemembers, and therefore wish to act as their own lawyers.
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