Archive for October, 2008

Yesterday’s extraordinary announcement that the Attorney General, Baroness Scotland, has been asked by Home Secretary Jacqui Smith to investigate possible “criminal wrongdoing” by MI5 and the CIA in the case of Binyam Mohamed, a British resident held in Guantánamo Bay, Cuba, is the latest, and perhaps most significant example of the use of torture coming back to haunt the torturers.

Mr. Mohamed’s lawyers have spent over three years attempting to secure information proving that their client, seized in Pakistan in April 2002, was rendered by the CIA to 18 months of torture in Morocco, and was then transferred to a CIA prison in Afghanistan, before arriving in Guantánamo in September 2004.

The Home Secretary’s unprecedented decision was based on evidence uncovered during a judicial review of Mr. Mohamed’s case in the High Court this summer. This established that an MI5 agent had acted illegally when he interrogated Mr. Mohamed during his “unlawful” detention in Pakistani custody, but there is clearly more to the story, involving other evidence of the activities of both MI5 and the CIA. Much of this was only heard in closed sessions in the high court, when the agent was being cross-examined, but the judges also gave weight to an admission, on behalf the Foreign Secretary, David Miliband, that Mr. Mohamed had “established an arguable case” that he had been subjected to torture in US control.

For defenders of the absolute ban on torture, the decision demonstrates that, whatever the circumstances, the use of torture can neither be condoned nor hidden forever. Back in 2002, when CIA planes were criss-crossing the globe, rendering kidnapped “terror suspects” to prisons in other countries, including Egypt, Jordan, Morocco and Syria, where they could be either “disappeared” or tortured on America’s behalf, few of the European countries who aided the United States in its policies of “extraordinary rendition” and torture bothered to think about the consequences.

Either through ferocious diplomatic pressure, or because they had bought into the “War on Terror” rhetoric, countries including Germany, Italy, Sweden and the UK provided key intelligence identifying suspects, assisted the kidnappings, interviewed prisoners when they were being held illegally, or provided information about them when they were already held in unknown conditions and in unknown locations.

For the Bush administration, none of this was regarded as a problem. Using wartime powers granted by Congress after the 9/11 attacks, the US government believed that national security concerns trumped its obligations under the UN Convention Against Torture and the Geneva Conventions, and in secret memos, lawyers close to Vice President Dick Cheney, who was driving the policies, granted the CIA unfettered powers to deal with “terror suspects,” sought to redefine torture, and, from the summer of 2002 onwards, authorized the CIA to run its own secret torture prisons.

Although the US administration, in its dying days, has so far managed to avoid accountability for its actions within the United States, its policies –- and the actions of other countries who provided assistance –- have come under increasing scrutiny in Europe.

In November 2006, the UN declared that the Swedish government had violated the universal torture ban in December 2001, when it handed over two Egyptian asylum seekers, Mohammed al-Zari and Ahmed Agiza, to the CIA. The men were then rendered to Egypt, where they were tortured, in spite of a “diplomatic assurance” from the Egyptian government, secured by the Swedes before the rendition took place, which purported to guarantee that they would be treated humanely.

Last year, in Germany and Italy, arrest warrants were issued for a number of CIA agents involved in the kidnapping, rendition and torture of two other men, Khaled El-Masri, a German citizen who was kidnapped in Macedonia and rendered to a CIA prison in Afghanistan, because he shared a name with someone who had allegedly aided the 9/11 hijackers, and Abu Omar, a cleric who was kidnapped in a Milan street in February 2003 and rendered to Egypt.

But while these cases have, to some extent, become mired in red tape, the latest developments in Binyam Mohamed’s case hold out the hope that, with the demise of the Bush administration, the absolute ban on the use of torture will be vigorously reinstated, if not voluntarily, then through court cases establishing that complicity in torture is unforgiveable.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published on Liberal Conspiracy.

In a third article looking at the corrupt chain of command in the Military Commissions at Guantanamo, Andy Worthington, author of The Guantánamo Files, looks at the implications of the recently announced military investigations into the conduct of the Commissions’ former legal adviser, Brig. Gen. Thomas Hartmann, but doubts that either investigation will be encouraged to look up the chain of command to see who was pulling Hartmann’s strings.

Last month saw the “reassignment” of Air Force Brig. Gen. Thomas Hartmann, the legal adviser to Susan Crawford, the Convening Authority who oversees the Military Commissions at Guantánamo (the system of “terror trials” conceived by Vice President Dick Cheney and his close advisers in November 2001). Hartmann, who was appointed in July 2007, was removed from his post after three government-appointed military judges had disqualified him from playing any further part in two trials — those of Salim Hamdan and Mohamed Jawad — and had also excluded him from a post-trial review in the case of Omar Khadr, because of his transparent pro-prosecution bias.

Hartmann had certainly ignored the requirement in his job description (as laid down in the Military Commissions Act of 2006) to deal impartially with both the prosecution and the defense, as two unexpected critics had confirmed over the previous months. In August, Brig. Gen. Gregory Zanetti, the deputy commander of Guantánamo’s Joint Task Force, testified that Hartmann’s demeanor was “abusive, bullying and unprofessional … pretty much across the board,” and in a memorable line described his approach as, “Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”

A few weeks ago Maj. David Frakt, the military defense lawyer for Mohamed Jawad, directed me to a deposition in Jawad’s case that was made in June by Capt. Patrick McCarthy, the Staff Judge Advocate of Joint Task Force Guantánamo, who noted that Hartmann was “remarkably aggressive” to him during meetings at Guantánamo, and that his “preferred approach” to personnel in Guantánamo was to “aggressively question” them, “and then when I attempted to interject and correct misunderstandings that were clear in the conversation, he would say things like, ‘who asked you? No one has asked you. You just be quiet.’ Things along those lines.”

As I also wrote in an article following Maj. Frakt’s correspondence with me:

Capt. McCarthy also testified that, as well as being bullying and dismissive to himself and, it seemed, every other officer below the rank of General or Admiral at Guantánamo, Hartmann had held several secure video teleconferences with the commanders at Guantánamo, and two face-to-face meetings, which, it appeared, were also part of his mission to “brief” commanders on how and when the trials would proceed, rather than allowing these issues to be developed by the prosecutors. As McCarthy described it, Hartmann “would closely identify himself with prosecutorial efforts,” was “involved at a level of detail that no other general or flag officer that I’ve ever worked for or with has ever been involved at,” and gave the impression that he was “responsible for moving forward with military commissions in all respects.”

As reported by the Los Angeles Times, which first announced the story of the investigations, Hartmann is facing investigations by both the Air Force and the Defense Department’s Office of the Inspector General. The latter, reflecting the testimony above, centers on complaints by at least two military officials about Hartmann’s “abusive and retaliatory behavior” towards them in the Office of Military Commissions, but the first is regarded as the more serious of the two, because military officials explained that “it was launched only after a preliminary inquiry found sufficient grounds to move forward.”

Investigators will look not only at allegations of Hartmann’s much-reported bullying, but more particularly at its baleful effects on the Commissions: cases proceeding to trial before they were ready (and in one instance on the basis of “charges that were unwarranted”), Hartmann’s insistence on using evidence obtained through coercion despite the objections of prosecutors, and “intentionally misleading statements,” which Hartmann made both in public and during the Commission proceedings, “in an effort to downplay the direct role that he played” on behalf of the prosecution.

These are all familiar complaints to those who have studied Hartmann’s tenure closely. As Capt. McCarthy explained in June, Hartmann had shown him a timeline of charges in November 2007, which indicated how many cases would proceed and when they would take place, and which also, of course, indicated that the decisions to proceed were not in the hands of the prosecutors, as they should have been. In a hearing at Guantánamo in the same month, Hartmann admitted that this timeline existed, but as Maj. Frakt explained, it was not until he compared the dates on Hartmann’s chart with the dates the prisoners were actually charged that he realized that they were remarkably similar. In a motion to dismiss in August, he wrote, “It is easy to come up with a sinister explanation for the congruence of the chart and the scheduling order. It is hard to come up with an innocent one.”

Maj. Frakt also pointed out how Hartmann had persistently misrepresented his role in public announcements when charges were put forward in various cases (for example, here and here), when he “gave the impression that no decisions had been made by him, that he had no prior familiarity with the evidence and that he was taking an open-minded review of the evidence.” The issue of using coerced evidence was addressed by Col. Morris Davis (photo, left), the Commissions’ former chief prosecutor, who resigned in October 2007, the day after he had been put in a chain of command below Hartmann, who was himself answerable to the Pentagon’s chief counsel, William J. Haynes II. Complaining of political interference, and the desire by his superiors to use evidence obtained through coercion — or even through torture — to which he was implacably opposed, Davis explained last December that he resigned after concluding that “full, fair and open trials were not possible under the current system.”

Unsurprisingly, both Col. Davis and Maj. Frakt have been “interviewed at length” by the Air Force inquiry’s chief investigator, Brig. Gen. Steven J. Lepper, who was assigned to the investigation after an unidentified military defense lawyer complained about Hartmann to Lt. Gen. Jack L. Rives, the Air Force’s Judge Advocate General, who in turn “referred the matter to his advisory committee on professional responsibility, which launched a preliminary inquiry and reported that a full investigation was warranted.”

Reiterating well-trodden complaints, Davis told the Los Angeles Times that Hartmann had “grossly exceeded his role as a neutral and independent and impartial legal advisor,” and Frakt said he “came forward with allegations about Hartmann because military regulations require one lawyer to report another if there is ‘a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.’” He added, “I do believe that Brig. Gen. Hartmann has acted in a manner that raises substantial questions as to his honesty, professionalism and fitness as a lawyer, and I believe his conduct has been prejudicial to the fair administration of justice in the military commissions.”

Another former prosecutor, who declined to be identified, told the Times that he too had been approached by Lepper. Reinforcing complaints aired above, he explained that he believed that Hartmann “was hammering on other prosecutors to move faster on cases, in one instance demanding that three or more cases a month be initiated,” even if they were not ready.

For opponents of Hartmann, the investigations will hopefully validate their many complaints about his excessive and inappropriate zeal. Although the investigations have no fixed timeline, the Times reported that, “if Hartmann was found to have acted improperly, he would face administrative sanctions that could include removal of his Judge Advocate General certification,” and other military lawyers suggested that Lt. Gen. Rives could “transfer Hartmann away from the Guantánamo cases or even ask for his retirement.”

Even more significantly, Scott Silliman of Duke University, who served in the Air Force’s Judge Advocate General Corps for 25 years, noted, “If there is a finding that Hartmann exceeded his role, I think every defense lawyer is going to walk in and move for some kind of relief in their case, and say it was not handled properly and move for the charges to be dismissed or refiled based on Hartmann’s activities.”

For me, this would be the best outcome of the investigations, for one simple reason. Much as I share numerous commentators’ delight that Hartmann’s exercise of undue command influence is being investigated, it is apparent, as I reported in a detailed article a month ago, that in many ways Hartmann was used by his superiors to act on their behalf and, simultaneously, to shield them from criticism. To understand the underlying reasons for the exercise of undue command influence in the Military Commissions, it is necessary to gaze up the chain of command to those who were directing Hartmann’s bias.

This chain of command, which caused Col. Davis to resign, leads from Hartmann to Susan Crawford, on to the Pentagon’s Chief Counsel (formerly Haynes, and now Daniel Dell’Orto), and from there to Dick Cheney and his chief of staff David Addington, the engineers of the whole malign project. For justice to have a chance to prevail, two investigations into Hartmann’s role are unlikely to be sufficient. Instead, the whole Commission process must be shut down, which will hopefully happen when a new administration takes office and the services of Cheney, Addington, Dell’Orto and Crawford are no longer required.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published exclusively on the website of the Future of Freedom Foundation.

See the following for further articles dealing with the stumbling progress of the Military Commissions: reports on Ali Hamza al-Bahlul’s trial and sentence.

In the real world, guilt and innocence are clearly defined, and those believed to be responsible for a crime are considered innocent until proven guilty in a court of law. Since the 9/11 attacks, however, the US administration has done away with such long-standing conventions.

Under the guise of waging a “War on Terror,” those in charge of America’s post-9/11 policies — primarily Vice President Dick Cheney, defense secretary Donald Rumsfeld and their legal advisers — set an arrogant new course into uncharted waters. Determined that those they seized would not be protected as Enemy Prisoners of War, they discarded the Geneva Conventions, with their prohibition on “cruel and inhumane treatment” and coercive interrogations.

Less remarked upon, though no less significant, was their dismissal of the battlefield tribunals established under the Geneva Conventions. Held during every conflict in modern American history, including Vietnam and the first Gulf War, these tribunals enabled the military to call witnesses close to the time and place of capture, to separate soldiers from civilians caught up in the fog of war.

Instead of prosecuting “terror suspects” as criminals, however, the administration also turned its back on the US court system, introducing a dystopian parody of the law, in which prisoners were held without charge or trial as “illegal enemy combatants.” Based on the presumption of guilt, this new system presented those detained with little or no opportunity to ever establish their innocence.

This was revealed explicitly last June, when Lt. Col. Stephen Abraham, a veteran of US intelligence, blew the lid on the Combatant Status Review Tribunals (CSRTs), Guantánamo’s version of the battlefield tribunals. Introduced after the US Supreme Court ruled, in June 2004, that the prisoners had habeas corpus rights (in other words, the right to challenge the basis of their imprisonment in a courtroom), the tribunals were a deliberate snub to the Supreme Court, and were also a mockery of their battlefield predecessors, primarily because none of the prisoners was ever allowed to call an outside witness to testify on their behalf.

Adding insult to injury, the prisoners were not allowed legal representation, and were prevented from either seeing or hearing the classified evidence against them, which often consisted of confessions extracted from other prisoners under unknown circumstances. In addition, as Lt. Col. Abraham explained, the information compiled for the tribunals frequently consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and was, essentially, designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.”

Further proof of the administration’s disregard for justice was provided by one of Lt. Col. Abraham’s former colleagues at the Office of Administrative Review for the Detention of Enemy Combatants (OARDEC), who sent him an email supporting his actions, and also observed that, “after several detainees were found to be ‘not an enemy combatant,’ DoD took away that option and we had to start using the term ‘no longer an enemy combatant’ for those held for no apparent reason.” This was indeed the case. Anxious not to admit that a single prisoner was innocent — partly to protect itself from lawsuits, but primarily, I suspect, because those in charge maintained, as they do to this day, that they were incapable of making mistakes — the administration cleared just 38 prisoners for release through the CSRT process, and made sure that all of them were labeled as “no longer enemy combatants.”

By the time of the CSRT’s successors, the annual Administrative Review Boards (ARBs), whose stated aim was to determine whether the prisoners still constituted a threat to the United States, the authorities rapidly dispensed with the claim that prisoners were “no longer enemy combatants.” Although 14 prisoners were labeled as such, the rest of those approved to leave Guantánamo (119 in total) were still explicitly regarded as “enemy combatants,” and were only approved for transfer from Guantánamo (to the custody of their home country, or a third country). By the time that decisions were announced for the second and third rounds of the ARBs, in February 2007 and February 2008, all of those cleared to leave (55 and 33 prisoners, respectively) were still regarded as “enemy combatants.”

Aside from the inconvenient fact that a great many of these men are, in fact, innocent men swept up in raids based on poor intelligence or sold to US forces by bounty hunters, who should not be saddled for the rest of their lives with the label of “enemy combatant,” I raise these issues at this particular time for one pressing reason, which brings us back to “innocence,” that troublesome concept that has been banished by the current administration.

Of all the men held at Guantánamo, only seventeen have persuaded the government to drop its claims that they are “enemy combatants.” These men, who are all still in Guantánamo, are Uyghurs, Chinese Muslims who had fled government oppression in their homeland (East Turkestan, known to the Chinese as Xinjiang province) for the sanctuary of a run-down hamlet in Afghanistan’s Tora Bora mountains. When the US-led invasion of Afghanistan began in October 2001, US forces bombed the settlement, thinking that it belonged to al-Qaeda or the Taliban. Several of the men died, but the others fled into the mountains, hiding from the relentless bombing in a cave and eventually making their way to Pakistan, where they were sold to US forces by opportunistic locals.

Throughout their time in US custody, the Uyghurs have put up with many humiliations. Anxious to secure a lack of Chinese opposition to the invasion of Iraq, the US administration invited Chinese interrogators to visit the prisoners in Guantánamo. The authorities also designated a Uyghur separatist group, the East Turkestan Independence Movement (ETIM), as a terrorist organization, claimed that it was linked to al-Qaeda and the Taliban, and then claimed that the Uyghurs in Guantánamo were all somehow connected to the group.

Nevertheless, several of the military tribunals were unconvinced. Seven of the Uyghurs were declared to be “no longer enemy combatants” after their CSRTs, although in two of these cases the Pentagon dismissed the original tribunal members and ordered second tribunals that confirmed the men as “enemy combatants.” Unwilling to return the five cleared Uyghurs to China, the administration eventually persuaded Albania to accept them in May 2006, but since then, despite being cleared for release through the ARB process, the remaining Uyghurs have been stuck in Guantánamo, as Albania’s largesse dried up, and no other country could be found that was prepared to take them.

In July this year, after a further ruling in the Supreme Court reversed legislation that had stripped the prisoners of their habeas rights in the intervening four years, the case of one of the Uyghurs, Huzaifa Parhat, was finally reviewed by a US court. Stunned by the lack of evidence linking ETIM to al-Qaeda and the Taliban, and the Uyghurs to ETIM, the judges in the Court of Appeals in Washington D.C. “held invalid a decision of a Combatant Status Review Tribunal” that Parhat was an “enemy combatant,” and in the following months what was left of the cases against the rest of the Uyghurs crumbled, as the government admitted that it would “serve no purpose” to continue trying to prove that Parhat was an “enemy combatant,” and then did the same for the other 16 Uyghurs.

As a result, when Judge Ricardo Urbina of the US District Court in Washington D.C. was required to make a decision about the Uyghurs’ fate three weeks ago, he had no hesitation in declaring, “Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful.” Furthermore, because no third country had been found that would accept the Uyghurs, he ordered that they be released to the care of communities in the Washington D.C. area, and Tallahassee, Florida, who had put together detailed plans for their resettlement in the United States.

The core of Judge Urbina’s ruling was his understanding that the Uyghurs — to use those words dreaded by the administration — were innocent men, and had been imprisoned by mistake. Predictably, of course, the administration appealed, but all they had in their arsenal were recycled and thoroughly discredited claims that the Uyghurs were “a danger to the public,” who had “admitted receiving weapons training at a military training camp.”

Sadly, however, the sheer hypocrisy of the government’s position was overlooked by the judges in the Court of Appeals for the District of Columbia Circuit, who granted the government a temporary stay, and on October 21 the court reiterated its position, ruling, by two votes to one, to extend the stay, and scheduling oral arguments for November 24.

In the meantime, nearly seven years after the Uyghurs were seized and sold to US forces in Pakistan, they remain imprisoned in Guantánamo, where they must, indeed, be wondering if innocence is a concept that the Bush administration has irrevocably destroyed.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published exclusively on the website of the Future of Freedom Foundation.

On October 22, I was delighted to be interviewed again by Linda Olson-Osterlund on the progressive radio station KBOO FM in Portland, Oregon. The 30-minute interview is available online here, and in it Linda and I discussed, at length, the “reassignment” of Brig. Gen. Thomas Hartmann, the legal adviser to the Convening Authority responsible for overseeing the Military Commissions at Guantánamo (the “terror trials” conceived by Vice President Dick Cheney and his close advisers in November 2001), after three government-appointed judges ruled that he had demonstrated pro-prosecution bias. More on this case is available here and here.

We also talked about the case of the Uyghurs, the wrongly imprisoned Chinese Muslims at Guantánamo, who are currently engaged in a struggle to secure their freedom in the United States, as no other country can be found that will accept them, and then moved on to the resignation of Lt. Col. Darrel Vandeveld, a former prosecutor in the Military Commissions, whose departure, after something of a Damascene conversion, has spooked the administration to such an extent that it has dropped charges against five prisoners he represented in an attempt to prevent him from testifying for the defense.

Also included was a discussion about two juveniles in Guantánamo –- the case of Mohamed Jawad, in which deliberately suppressed evidence was discovered by Vandeveld, leading to his outspoken departure, and Omar Khadr, about whom I recently wrote an article following my discovery of a manual on the treatment of juveniles in Guantánamo that was clearly never implemented by Donald Rumsfeld’s Defense Department.

The show closed with a discussion of the Presidential candidates and their relative positions on Guantánamo and the “War on Terror,” in which I lamented the transformation of John McCain, a lifelong opponent of torture, into the figurehead of a campaign of hatred and fear, and my hopes that, although Barack Obama has chosen –- or been advised –- not to speak about the government’s abuse of executive power in the run-up to the election, he means what he said in a speech in August 2007:

In the dark halls of Abu Ghraib and the detention cells of Guantánamo, we have compromised our most precious values. What could have been a call to a generation has become an excuse for unchecked presidential power. A tragedy that united us was turned into a political wedge issue used to divide us.

When I am President, America will reject torture without exception. America is the country that stood against that kind of behavior, and we will do so again … As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists … The separation of powers works. Our Constitution works. We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.

I thoroughly enjoyed the interview, as ever, and hope to speak to Linda again in the near future.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

Now here’s a problem that anyone with half a brain could have seen coming. Today the second trial by Military Commission at Guantánamo — in other words, the second US “war crimes” trial since the Second World War, following the underwhelming trial of Salim Hamdan this summer — opened not with a bang, and not even with a whimper, but with complete silence.

The defendant, Ali Hamza al-Bahlul, a 39-year old Yemeni, is accused of working as al-Qaeda’s “media director” and being a bodyguard for Osama bin Laden. He has, moreover, accepted in pre-trial hearings that he is a member of al-Qaeda, and his prosecution should, therefore, have been an opportunity for the administration to demonstrate that the “War on Terror” — for the most part, a brutal, law-shredding fishing expedition — has at least produced one success for the Commissions’ architects (Vice President Dick Cheney and his chief of staff David Addington) to trumpet before next week’s Presidential elections.

Ali Hamza al-Bahlul (far left) holds up a sign saying “boycott” at his Military Commission hearing on May 7, 2008. Courtroom sketch by Janet Hamlin.

Unfortunately for the administration, this rosy picture has been soured by al-Bahlul’s refusal to take part in his trial. As the court convened today, he sat in silence as his appointed military defense lawyer, Maj. David Frakt, announced that al-Bahlul was boycotting the trial, and that he had two specific reasons: firstly, because the judge had repeatedly denied his requests to represent himself, and secondly because he did not wish to be represented by a military lawyer.

Noting that he was obliged to respect his client’s wishes, Maj. Frakt then asked to be relieved, and when the judge, Air Force Col. Ronald Gregory, refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory.

In response, Col. Gregory attempted to argue that Maj. Frakt was “obliged to participate,” as the Associated Press described it, and insisted, “The commission will not proceed with an empty defense table.” However, he then appeared to concede that it was not in his power to force Maj. Frakt to represent al-Bahlul, and determined to proceed with a trial based solely on evidence provided by the prosecution, even though this will do nothing to convince any objective observer that justice will be seen to be done.

What’s particularly bizarre about this empty trial is that the government should have known that this was what would happen. Ever since al-Bahlul was first put forward for trial by Military Commission (in the trials’ first incarnation, which was struck down as illegal by the Supreme Court in June 2006), he has tried to represent himself, and has boycotted the proceedings when prevented from doing so. Back in 2005, this prompted a crisis for his military-appointed lawyer, Army Maj. Tom Fleener, who was obliged to represent him under the Commissions’ rules at the time.

Speaking to GQ last summer, Maj. Fleener explained, “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.” Sean Flynn of GQ 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.”

Maj. Fleener, like his colleague, Navy Lt. Cmdr. William Kuebler, who was assigned to represent a similarly uncooperative prisoner, Ghassan al-Sharbi (and who is now the lawyer for Omar Khadr), knew that the Commissions were in fact nothing more than a pageant. As Fleener explained to Flynn, “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.”

The two men, united by their considered opinion of the Commissions, and of the unpleasant role into which they had been thrust, held long conversations about the trials. “Over time,” Kuebler explained, “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.”

Fleener added, “Only the government benefits if we do a bang-up job. 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.” And as Flynn added, “the detainees know it, which is why they don’t want to go along with a charade.”

Fleener continued: “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.’”

As a result, Fleener realized, as Flynn put it, that he “had to return to active duty — specifically, to represent al-Bahlul. Or more accurately, to be the lawyer al-Bahlul would try to fire, the proxy through which an alleged terrorist could attempt to preserve the right to choose his own counsel.”

Fleener’s one and only encounter with al-Bahlul was on January 11, 2006, just before a pre-trial hearing, when he explained why he didn’t wish to be represented. In the hearing, al-Bahlul explained, as he had during his only other hearing 17 months before, that he was boycotting the proceedings, and the judge, Army Col. Peter E. Brownback III, then motioned for Fleener to move up the table to represent him. The following exchange then took place:

Fleener: Sir, is this an order? Should I consider it an order?
Brownback: Do you need an order?
Fleener: I believe I do, sir.

Fleener was not being difficult for the sake of it. The problem was not just that he was being ordered to represent a client who didn’t want to be represented, which is unethical; it was also that, outside of the specific context of the Military Commissions, in the legal world outside Guantánamo to which Fleener also belonged, he could be punished for doing so. As Flynn explained, “The defendant can sue for malpractice, and the bar can impose sanctions, even take away his license to practice.” He added, “An order to represent al-Sharbi and al- Bahlul, then, would also be an order for Fleener and Kuebler to violate their professional ethics; by obeying their superiors, they risked disobeying the rules of the bar.”

This conflict was never resolved, as the Supreme Court stepped in, and Fleener and Kuebler were not required to represent al-Bahlul and al-Sharbi again. However, it was clearly such a significant problem that when the Military Commission system was revived by Congress in the fall of 2006, it included the following: “The accused shall be permitted to represent himself, as provided for by paragraph (3).”

This appeared to address the ethical dilemmas faced by Fleener and Kuebler, but as Flynn noted, “there were reasons to be skeptical, to suspect that the provision wasn’t as clear as it seemed: The ‘paragraph (3)’ it referred to was a list of caveats that allowed self-representation to be revoked if the defendant didn’t behave to the presiding officer’s liking. So what would happen if a man’s idea of representing himself was to boycott his trial? Would a lawyer be forced on him then? That wasn’t clear at all.”

What happened, as we have seen today, and as was telegraphed in May, when al-Bahlul attended a pre-trial hearing for his Military Commission (Mk. II) and again boycotted it, was that another military lawyer — this time Maj. David Frakt — would face the same dilemma faced by Maj. Fleener and Lt. Cmdr. Kuebler in 2005 and 2006, and would again insist on his right not to compromise his ethical obligations by representing an unwilling client.

The empty chair — a symbol of lop-sided justice if ever there was one — is the inevitable result, but as I stated at the beginning of this article, anyone with half a brain — or the current US administration — should have seen this coming.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published on CounterPunch, Antiwar.com and the Huffington Post.

See here for a report on Ali Hamza al-Bahlul’s sentence.