Team Infidel
Forum Spin Doctor
Miami Herald
April 15, 2008
Pg. 1
A simmering boycott movement presents a challenge to coming trials -- 'empty-chair' convictions of terrorists who skip the trials and sit in their cells.
By Carol Rosenberg
GUANTANAMO BAY NAVY BASE, Cuba -- Detainees denounce the war-crimes court as a ''sham'' and refuse military lawyers. Attorneys consult their bars, worried that their licenses might be revoked for defending clients who fired them. And the Pentagon presses on in its push for speedy trials.
This drama played out here as a succession of alleged al Qaeda foot soldiers came up for arraignment ahead of the government's plan to stage its showcase trial of six men charged in the Sept. 11 conspiracy.
One case went like this last week: Rather than consult with his lawyer, Ibrahim Qosi of Sudan, 47, jammed his fingers in his ears. Then the man who allegedly served as Osama bin Laden's bodyguard was led into his military commission, defiant.
''Do whatever you wish to do,'' he told the judge, Air Force Lt. Col. Nancy Paul, declaring the trials ''a legal sham'' that ``move at the pace of a turtle in order to gain some time and keep us in these boxes without any human or legal rights.''
Paul ordered the case to move forward, even as Qosi's lawyer, Cmdr. Suzanne Lachelier, a former federal defender, consults the California bar on whether her license will be at risk for representing someone who fired her.
Soon after, the Pentagon lawyer supervising the first U.S. war-crimes tribunals since World War II vowed to press on.
''The rules provide for the process to move forward whether or not the accused chooses to participate,'' said Brig. Gen. Thomas Hartmann, declaring the military trials ''extraordinarily fair by any norm'' and providing ``substantial protections.''
Countered Miami defense attorney Neal Sonnett, who monitors commissions for the American Bar Association: ``If all these cases are going to proceed with empty chairs, what has already been called a kangaroo court will just be highlighted as really a kangaroo court.''
Some in the U.S. legal community and overseas, he said, already decry the trials set up after the Sept. 11 attacks to avoid existing civilian and military courts.
The first trial is scheduled for late June with bin Laden's driver facing life imprisonment on an al Qaeda conspiracy charge. The driver has cooperated with his lawyers for years, so much so that Salim Hamdan brought the commissions to a standstill in a challenge to the Supreme Court.
Advocates defend commissions as war-on-terror necessities to safeguard American national security secrets during an ongoing war against al Qaeda. In them, alleged terrorists held for years get Pentagon-paid military lawyers and a presumption of innocence -- the same as a U.S. soldier facing court martial.
Detainee lawyers say the captives see a defense lawyer in the uniform of their jailers, interrogators, judges and juries -- and don't trust the system. At courts-martial, they say, everyone accepts the military's authority, because they are all members of it -- not like Guantánamo detainees scooped up overseas and held in U.S. custody, many for more than six years.
Even a Guantánamo detainee cleared of a war crime by a commission doesn't necessarily go free. Under Bush administration guidelines, he is still an ''enemy combatant'' subject to indefinite detention in the ``global war on terror.''
Mum on boycott
Neither the Pentagon's chief prosecutor, Army Col. Lawrence Morris, nor Hartmann would say whether they thought the captives were choreographing the boycotts. And it's still unclear how many more resist among the up-to 80 men the Pentagon wants to put on trial; there are 280 now held in Guantánamo.
Yet-to-be-seen is whether alleged al Qaeda kingpin Khalid Sheik Mohammed works with his military lawyer -- a Navy Reserve officer, Capt. Prescott Prince, who in civilian life worked as a small practice criminal defense attorney in Richmond, Va.
The Pentagon wants to try the reputed 9/11 mastermind and five other captives in a complex six-detainee case alleging they conspired to kill 2,973 people on Sept. 11, 2001.
The prosecutor wants execution as a penalty for conviction -- and Mohammed has already confessed, on paper at least, to plotting a long string of attacks, some never realized, after the CIA waterboarded him in interrogation.
Meantime, the recent trend toward boycott presents lawyers and judges with an ethical dilemma:
• How does a lawyer who believes he or she has been fired by the client function at the war court?
Answers range from, simply sit there and offer no defense, because the ex-client wants it that way -- or offer an ''empty-chair'' defense, which, without the participation of the detainee, tries to challenge the evidence.
• What, if anything, ought the nine commissions judges do to help the defense attorneys, military officers like themselves, persuade boycotting detainees to assist in a defense?
Lachelier asked Paul to to help her gain access to Qosi's cell to try to persuade him -- face to face -- to accept her services. The judge refused. Prison camp commanders have said such access is against Pentagon policy.
'Unsung heroes'
Reached by telephone last week, Republican Sen. Lindsay Graham of South Carolina, himself a former military judge advocate, or JAG, called the defense lawyers ``some of the unsung heroes in the whole war.
``They are doing something that showcases what we are, our values and I have nothing but respect for them.''
An architect of the commissions law, Graham said he was writing Secretary of Defense Robert Gates to investigate whether the defense JAGs were getting sufficient resources.
But he said it was up to the JAGs themselves to work out the trials for alleged al Qaeda terrorists who don't cooperate.
Moreover, he said it is not unheard-of to win an acquittal in in-absentia trials.
''How would you like to be the prosecutor in that case?'' he said.
The boycott tactic is not new. A Yemeni man accused of making al Qaeda recruiting videos as Osama bin Laden's media secretary employed it in earlier trials since shut down by the U.S. Supreme Court. He was Ali Hamza al Bahlul, who in January 2006 waved a sign with a single Arabic word -- muqata'a, boycott.
And he's facing charges at the new trials, which now allow for self-representation, something Bahlul sought and lost in the first war court.
April 15, 2008
Pg. 1
A simmering boycott movement presents a challenge to coming trials -- 'empty-chair' convictions of terrorists who skip the trials and sit in their cells.
By Carol Rosenberg
GUANTANAMO BAY NAVY BASE, Cuba -- Detainees denounce the war-crimes court as a ''sham'' and refuse military lawyers. Attorneys consult their bars, worried that their licenses might be revoked for defending clients who fired them. And the Pentagon presses on in its push for speedy trials.
This drama played out here as a succession of alleged al Qaeda foot soldiers came up for arraignment ahead of the government's plan to stage its showcase trial of six men charged in the Sept. 11 conspiracy.
One case went like this last week: Rather than consult with his lawyer, Ibrahim Qosi of Sudan, 47, jammed his fingers in his ears. Then the man who allegedly served as Osama bin Laden's bodyguard was led into his military commission, defiant.
''Do whatever you wish to do,'' he told the judge, Air Force Lt. Col. Nancy Paul, declaring the trials ''a legal sham'' that ``move at the pace of a turtle in order to gain some time and keep us in these boxes without any human or legal rights.''
Paul ordered the case to move forward, even as Qosi's lawyer, Cmdr. Suzanne Lachelier, a former federal defender, consults the California bar on whether her license will be at risk for representing someone who fired her.
Soon after, the Pentagon lawyer supervising the first U.S. war-crimes tribunals since World War II vowed to press on.
''The rules provide for the process to move forward whether or not the accused chooses to participate,'' said Brig. Gen. Thomas Hartmann, declaring the military trials ''extraordinarily fair by any norm'' and providing ``substantial protections.''
Countered Miami defense attorney Neal Sonnett, who monitors commissions for the American Bar Association: ``If all these cases are going to proceed with empty chairs, what has already been called a kangaroo court will just be highlighted as really a kangaroo court.''
Some in the U.S. legal community and overseas, he said, already decry the trials set up after the Sept. 11 attacks to avoid existing civilian and military courts.
The first trial is scheduled for late June with bin Laden's driver facing life imprisonment on an al Qaeda conspiracy charge. The driver has cooperated with his lawyers for years, so much so that Salim Hamdan brought the commissions to a standstill in a challenge to the Supreme Court.
Advocates defend commissions as war-on-terror necessities to safeguard American national security secrets during an ongoing war against al Qaeda. In them, alleged terrorists held for years get Pentagon-paid military lawyers and a presumption of innocence -- the same as a U.S. soldier facing court martial.
Detainee lawyers say the captives see a defense lawyer in the uniform of their jailers, interrogators, judges and juries -- and don't trust the system. At courts-martial, they say, everyone accepts the military's authority, because they are all members of it -- not like Guantánamo detainees scooped up overseas and held in U.S. custody, many for more than six years.
Even a Guantánamo detainee cleared of a war crime by a commission doesn't necessarily go free. Under Bush administration guidelines, he is still an ''enemy combatant'' subject to indefinite detention in the ``global war on terror.''
Mum on boycott
Neither the Pentagon's chief prosecutor, Army Col. Lawrence Morris, nor Hartmann would say whether they thought the captives were choreographing the boycotts. And it's still unclear how many more resist among the up-to 80 men the Pentagon wants to put on trial; there are 280 now held in Guantánamo.
Yet-to-be-seen is whether alleged al Qaeda kingpin Khalid Sheik Mohammed works with his military lawyer -- a Navy Reserve officer, Capt. Prescott Prince, who in civilian life worked as a small practice criminal defense attorney in Richmond, Va.
The Pentagon wants to try the reputed 9/11 mastermind and five other captives in a complex six-detainee case alleging they conspired to kill 2,973 people on Sept. 11, 2001.
The prosecutor wants execution as a penalty for conviction -- and Mohammed has already confessed, on paper at least, to plotting a long string of attacks, some never realized, after the CIA waterboarded him in interrogation.
Meantime, the recent trend toward boycott presents lawyers and judges with an ethical dilemma:
• How does a lawyer who believes he or she has been fired by the client function at the war court?
Answers range from, simply sit there and offer no defense, because the ex-client wants it that way -- or offer an ''empty-chair'' defense, which, without the participation of the detainee, tries to challenge the evidence.
• What, if anything, ought the nine commissions judges do to help the defense attorneys, military officers like themselves, persuade boycotting detainees to assist in a defense?
Lachelier asked Paul to to help her gain access to Qosi's cell to try to persuade him -- face to face -- to accept her services. The judge refused. Prison camp commanders have said such access is against Pentagon policy.
'Unsung heroes'
Reached by telephone last week, Republican Sen. Lindsay Graham of South Carolina, himself a former military judge advocate, or JAG, called the defense lawyers ``some of the unsung heroes in the whole war.
``They are doing something that showcases what we are, our values and I have nothing but respect for them.''
An architect of the commissions law, Graham said he was writing Secretary of Defense Robert Gates to investigate whether the defense JAGs were getting sufficient resources.
But he said it was up to the JAGs themselves to work out the trials for alleged al Qaeda terrorists who don't cooperate.
Moreover, he said it is not unheard-of to win an acquittal in in-absentia trials.
''How would you like to be the prosecutor in that case?'' he said.
The boycott tactic is not new. A Yemeni man accused of making al Qaeda recruiting videos as Osama bin Laden's media secretary employed it in earlier trials since shut down by the U.S. Supreme Court. He was Ali Hamza al Bahlul, who in January 2006 waved a sign with a single Arabic word -- muqata'a, boycott.
And he's facing charges at the new trials, which now allow for self-representation, something Bahlul sought and lost in the first war court.