Defender Says Detainees Should Be Able to Represent Themselves

Detainees facing war crimes charges should have the right to represent themselves, despite Pentagon decisions that have “messed up” the military’s ability to conduct fair trials, an Army defense lawyer said Friday.

The right of accused individuals to self-representation is one of many issues in dispute as the military prepares to hear cases against 10 people whom the U.S. has designated as enemy combatants and detained at Guantanamo camps.

Pretrial jousting between Pentagon-appointed jurists and lawyers for the foreign defendants has centered on issues of fair trial and due process.

In the case of 37-year-old Ali Hamza al Bahlul, his military attorney argued Friday that his client’s right to self-representation was as fundamental as the presumption of innocence.

Like at least two other defendants awaiting trial, Bahlul insists on acting as his own attorney. He has demonstrated in previous appearances the intelligence and decorum to do so, his lawyer told Army Col. Peter Brownback III, the presiding officer for the Yemeni’s case.

Bahlul’s attorney, Army Maj. Tom Fleener, noted that notorious defendants such as Al Qaeda conspirator Zacarias Moussaoui had been allowed to represent themselves.

Prosecutors and defense lawyers have argued in briefs to the Pentagon that the right should be granted in the tribunals.

President Bush, in creating the military commissions after Sept. 11, 2001, called for those accused of aiding Al Qaeda to be accorded “a full and fair trial.”

However, in drafting commission rules, Defense Secretary Donald H. Rumsfeld’s staff has forbidden self-representation by detainees.

“We can’t help it that the secretary of Defense and his delegees have messed this thing up, but they have,” Fleener told Brownback.

The tribunal is being held amid international criticism of alleged human rights violations at the U.S. detention facility, a United Nations recommendation that the camps and tribunal be shut down, and a pending U.S. Supreme Court decision on whether the ad hoc criminal justice process is legal.

As all parties connected to the first three cases have struggled to work through arraignments and pretrial motions in the last week, there has been confusion over which body of law -- military, civilian or international -- applies.

In the case of Canadian Omar Khadr, 19, who is accused of fighting U.S.-led coalition forces in Afghanistan, lead defense counsel Marine Lt. Col. Colby Vokey complained about the logistics of traveling to Guantanamo and about a lack of procedural clarity.

Vokey said he had no confidence that the obstacles preventing a fair trial were correctable. “What I desperately want to know here is: What are the rules?” he said.

Vokey cited the difficulty in trying to find out why Khadr had been moved from the area for the most cooperative detainees to the maximum-security cellblock. Only under threat of being called to testify did prison officials explain the rationale for moving prisoners in advance of legal proceedings.

Richard J. Wilson, an American University law professor also defending Khadr, said the military commission did not distinguish between adult suspects and minors. Khadr was 15 when apprehended in 2002.

“The fact that there is no recognition of the difference of having a child in confinement, in interrogations, on trial and at sentencing, all aspects of his life as a detainee -- that is an issue of great concern to us,” Wilson said.

In the case of Binyam Ahmed Muhammad, an Ethiopian seeking to represent himself, his Air Force reservist lawyer said she was being forced to choose between disobeying a tribunal order or possibly being disbarred for participating in a case in which attorney-client privilege and other rights had been violated.

The tribunal’s chief prosecutor, Air Force Col. Morris Davis, said he didn’t see any shortcomings that could not be overcome.

“All processes have a start. At the start, there’s nothing you can turn to,” he said, adding that the tribunal was beginning to acquire governing instructions.

The myriad challenges to the tribunal’s legitimacy have been taken under consideration by presiding officers or referred to Pentagon officials, putting off resolution of the thorny legal questions for weeks or months.

The Supreme Court is expected to rule in June on whether the tribunal process should go on and, if so, how to avoid any rights abuses.