In an excellent article for GQ, The Defense Will Not Rest, Sean Flynn profiles William Kuebler and Tom Fleener, military lawyers assigned to defend two alleged terrorists, Ghassan al-Sharbi and Ali Hamza al-Bahlul, in their Military Commissions at Guantánamo Bay. Robustly defending established laws, and delivering a devastating condemnation of the Commission process, Kuebler and Fleener lambast the administration for seeking results based on a preconceived notion of guilt (in much the same way that Stephen Abraham has complained about the tribunal process at Guantánamo), explain how their roles obliged them to be little more than puppets in illegal show trials, and describe the insoluble conflict between their military and legal obligations. Their complaints are many –- and I urge anyone reading this to read the whole article –- but the main issues are as follows:
Firstly, both al-Sharbi and al-Bahlul did not wish to be represented by lawyers, and neither Kuebler nor Fleener could find any justification for the administration’s insistence that they were not allowed to represent themselves. As Flynn notes, “The right to self-representation had been a codified tenet of American law for 217 years. Under established rules, whether a man can competently defend himself is irrelevant; he need only be competent to make the decision to represent himself.” Kuebler –- a navy lieutenant described by Flynn as “not a radical or a gadfly or even a liberal,” but rather as “a conservative Republican and devout Christian” –- believed that al-Sharbi was competent to make that decision. “Therefore,” Flynn continued, “Kuebler believed he had an ethical obligation to step aside. A lawyer can’t force himself upon an unwilling client, and no credible court would ever allow such a thing. To do so would be to replace a vigorous defender with a prop, an actor in a charade that only mimicked a proper trial.”
Fleener faced a similar problem. A major in the army reserves, he had become interested in the Commissions after being briefed by friends in the Judge Advocate General’s Corps (JAG), and “was shocked by what he found: The rules really did require defendants to accept a pro bono military lawyer.” He told Flynn, “The concept of compelled representation has always bothered the crap out of me. You just don’t force lawyers on people. You don’t represent someone against his will. It’s never, ever, ever done.” Flynn then explained, “The reason it’s never done is that it undermines the concept of a fair trial. When a man’s life or liberty is at stake, he gets to decide who will speak for him. That’s the way American courts work, have always worked. To eliminate that right is to begin to transform a trial into a pageant. And the other commission regulations –- the use of secret evidence and third-hand hearsay, excluding defendants from parts of their own trials, charging them with invented crimes after they’d been interrogated in isolation for years –- only further that transformation.”
Fleener added, “I hated the fact, still hate the fact, that we were making up a trial system to convict people after we’d already decided they’re guilty. I hated that, as a country, we were doing that. I didn’t like the fact that we were violating the rule of law, and that what we were doing as a country was just … wrong.” Kuebler reached a similar conclusion. “It took me a while to figure out the system is rigged,” he told Flynn. “When it hit me how ridiculous and unjust and farcical this is? That was it. That was the moment I realized it was all a sham.”
Tom Fleener (left)
The truth about the Commissions, as both men had realized, was that the administration needed to pursue the trials to provide a figleaf of justification for the whole malign Guantánamo experiment, given that, as Brigadier General Thomas Hemingway, the former legal adviser to the commissions, explained, it was “extremely unlikely” that any of the detainees could be convicted in a federal court or in a regular court-martial “because of the way we’ve collected evidence and other things,” to which Flynn added, “Even generously assuming no evidence has been obtained through abusive interrogations (which would almost certainly be barred from any criminal court), each defendant has been questioned for years without the benefit of counsel, which in itself would be considered impermissible.” As a result, the defense lawyers were obliged to take part in the Commissions because they had been designed by the administration “to appear to be fair. The rules required each defendant to be provided a JAG officer who would be bound by personal and professional honor to present as robust a defense as possible. It would all look very proper, but the outcome would be preordained, the defendant utterly doomed, because of all the other rules.”
Flynn continues: “The main problem with the commission system is that it would try men already considered guilty: Every defendant would have been ruled an enemy combatant, first by the mere fact of his detention, then by a separate board, a Combatant Status Review Tribunal –- and he would be charged with a crime only an enemy combatant could commit … The charge would only reinforce what had already been decided; the presumption of innocence would be completely reversed. The trial procedures were no better. Defendants wouldn’t see classified evidence against them, including anything that fell under the broad rubric of ‘sources and methods’ –- or, more simply, how statements were gathered and from whom. That obviously could include the benign, such as protecting the identity of an informant, yet it also clearly suggested that evidence derived from torture could be allowed while the actual torturing would be kept secret. If, for example, John Doe had been waterboarded until he claimed that Mike Smith was a terrorist, Mike Smith would know only that ‘a source’ had positively identified him, though not who or under what conditions. The accused also could be removed from his own trial whenever the presiding officer decided national security needed to be protected, and the rules tolerating hearsay testimony were so loose as to be meaningless. Any fifth-hand mumblings could be used against a man, and he would have no effective ability to challenge them.”
Both Kuebler and Fleener were appalled. Fleener told Flynn, “In practice the commissions dispense with two indispensable legal protections –- the presumption of innocence and the prevention of ex post facto application of criminal laws. What we’re saying is, ‘You are guilty of something –- we just don’t know exactly what. So we’ll gather as much incriminating evidence as we can, using methods that we aren’t going to talk about, and then we’ll make up a law that criminalizes the conduct.’”
“Over time,” Kuebler added, “we figured out we’re the linchpin in this process. They want to have these bizarre trials, they don’t want to let the defendant see secret evidence –- so the one thing they need is us. The government wanted this attorney-client thing to work. They really did. It’s an important part of the show.” “Only the government benefits if we do a bang-up job,” Fleener concluded. “The administration believes the commission process will ultimately justify the detentions. They know they can’t just hold people; they don’t want to take the political heat. So they rigged the rule of law. And because it’s rigged, the only thing that’s in play is the appearance … At the end of the day, that’s how these guys look at it: ‘If I’m going to get a life sentence –- or a death sentence –- I’d rather get one in this weird, disgusting system that everyone knows is a weird, disgusting system than have some military lawyer up there dancing and juicing it up and making it look like it’s not rigged.’”
In an even more critical passage, Flynn notes that “What happens to those two admitted jihadists is, frankly, less important than what happens to the American ideal,” and quotes Fleener once more: “It truly does affect all of us. It’s not because al-Bahlul wants to dispense with counsel that I’d leave my job and get involved in this mess. It’s that once you start putting on show trials, you can’t go back.” (emphasis added).
Ali Hamza al-Bahlul (2nd from right) during his aborted Military Commision in August 2004.
After a lively section analyzing the conflict of interest between their roles as representatives of the US military and as civilian lawyers who could have their licenses revoked if they insisted on representing a client who did not wish to be represented (their legal responsibilities won out), Flynn explains that, although still officially assigned to al-Sharbi and al-Bahlul, neither Kuebler nor Fleener “has had to do any actual lawyering” on their behalf since June 2006, when, in Hamdan v. Rumsfeld, the Supreme Court “threw out the military commission system, ruling that the president can’t unilaterally invent ways of trying people, even foreigners imprisoned outside US territory, without congressional approval.” Although the decision dismissed all the pending cases (including those of al-Sharbi and al-Bahlul), they could still be charged again, as the process was reinstated by Congress last October in the reviled Military Commissions Act.
As Flynn notes, acutely, this was “an astonishingly radical law,” which granted the president “the authority to declare anyone, captured anywhere, an enemy combatant who can be jailed indefinitely and without charge, precisely the sort of power against which the colonists fought the revolution,” and which also “explicitly stripped the right of habeas corpus from any foreign national designated an enemy combatant,” and “implicitly weakened the Article 3 protections of the Geneva Conventions by allowing the president to define ‘outrages upon personal dignity, in particular humiliating and degrading treatment,’ which the conventions prohibit.”
Shorn of their original cases (although Kuebler recently represented Omar Khadr in his aborted Military Commission), both Kuebler and Fleener have, nonetheless, maintained their opposition to the whole process, addressing law students, legal societies and public meetings throughout the US. “On an intellectual level,” Flynn writes, “it’s intriguing stuff, untangling the threads of international law and military procedure and constitutional reach,” but it means more than that to Fleener, who told Flynn, “All of that is fascinating. But what it does is take everyone away from the facts, which are: We lock up innocent people without access to courts, and we’ve tortured people. And when you’ve got a bunch of government lawyers sitting around trying to game torture, the first thing you’d hope would happen, especially as a lawyer, is that someone would step back and say, ‘Hey, we’re trying to game torture. This isn’t right.’ And no one did that. Not one of them.” “Instead,” as Flynn adds, “people who swore to uphold the American ideal, beginning with the president, deliberately subverted it. They established a system of detention and interrogation –- with the acquiescence of a compliant Congress and a fearful public –- that no American would tolerate if it were applied to our citizens anywhere else.”
The final, most damning words come from Fleener and Kuebler themselves. “I think more war crimes have been committed in the detention and interrogation and fake trials of people in Guantánamo than people in Guantánamo have committed,” Fleener said. “And I don’t think the question is whether they’ve tortured people.” After a moment, Kuebler, described by Flynn as “the more reserved of the two,” added, “I think things have been done to people that under any definition except this administration’s very narrow one would be torture.”
Note: See Marie Brenner’s Vanity Fair profile of JAG lawyer Charles Swift, lawyer for Salim Hamdan, and ABC Australia’s interview with Major Michael Mori, lawyer for David Hicks, for more on military lawyers critical of the entire Military Commission process.
For more on Guantánamo and the Military Commissions, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed.
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I wish Guantánamo Bay never happened. Its the only thing that America has done that makes me really understand why people in other nations think were hypocritical
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