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American Forces Press Service

Guantanamo Hearing Opens Amid Legal Issues

By Kathleen T. Rhem
American Forces Press Service

NAVAL STATION GUANTANAMO BAY, Cuba, Jan. 12, 2006 A two-and-a-half-hour session yesterday morning raised thorny legal issues in the military commissions proceeding against an accused al Qaeda propagandist held at the U.S. detention facility here.

The first such hearing here in over a year resulted in the defendant boycotting the proceedings and an ethical dilemma for the assigned military defense attorney.

Army Maj. Thomas Fleener, detailed to represent Ali Hamza Ahmad Sulayman al Bahlul, is working to resolve an ethical dilemma. Bahlul has asked to represent himself and refused to speak with Fleener.

Yesterday's hearing highlighted the extent of Bahlul's refusal to cooperate. When presiding officer Army Col. Peter E. Brownback III gave him an opportunity to speak, Bahlul launched into a lengthy speech of nine points. In his view and through a translator, he attacked U.S. policies that "corrupt" the religion and life of Muslims and "steal their wealth," "blunt injustice" carried out with Jews to harm Muslims in the Palestinian territories, the U.S. division of the world into classes, and the U.S. decision to deny him the right to represent himself, among other things.

Bahlul said he recognized that he is detained by Americans and subject to U.S. policies even though he believes he is a lawful combatant and a prisoner of war. "There will be a tribunal of God on the day of judgment," he said. "So therefore I am telling the judge, 'Do what you have to do, ... because this life will end.

"'You rule on Earth, and God will rule based on justice,'" Bahlul continued.

In a bit of courtroom drama, he then raised a piece of paper on which he had elaborately sketched and colored in the Arabic word for "boycott" and turned it in all directions so everyone in the courtroom could see. "I am boycotting all sessions even if I am forced to be present or I am put away," he said. "Boycott, boycott, boycott."

When Brownback asked to make a copy of the paper Bahlul had held up, the detainee added the word "boycott" in English, signed the paper, and dated it with Western and Muslim dates, all the while explaining what he was doing, before handing it to the bailiff.

Next Brownback asked if he could ask Bahlul a few more questions before he began to boycott the proceedings. At this, Bahlul held up his hands to indicate a negative response, appeared to smile serenely at Brownback, took off the headset through which he was receiving translation, and put his hands in his lap. He sat quietly like this for the rest of the session.

After a brief recess, Brownback explained he was not allowing Bahlul to represent himself in part because he is not competent based on the fact that he's boycotting the proceedings. "Obviously a person who will not participate in the proceedings cannot represent himself," Brownback said. A separate reason that Bahlul can't represent himself is that military commissions rules don't allow it, Brownback said.

The hearing then turned to Fleener's ethical issues. Military commissions rules require that all defendants be assigned U.S. military defense counsel. Fleener had explained Jan. 10 that this places him in an ethical dilemma, because he cannot mount a capable defense if Bahlul will not cooperate.

He also has concerns about the ethical ramifications of forcing representation on a client who has asked to represent himself. He said the right to self-representation is recognized in all levels of U.S. and international law.

When Fleener entered the court yesterday morning, he pulled a chair back from the defendant's table and sat apart from Bahlul. After listening to Bahlul's manifesto, Brownback asked Fleener to move up to the defense table.

"Sir, is this an order? Should I consider it an order?" Fleener, an Army Reservist who is an assistant federal prosecutor in Cheyenne, Wyo., asked.

"Do you need an order?" Brownback responded. Fleener said he did, and Brownback ordered him to sit at the defense table.

He then promptly asked to withdraw from the case based on Bahlul's desire to refuse a U.S. military attorney. Brownback refused this request. "You are (factually and legally) the only counsel that Mr. al Bahlul has," Brownback said. "As he pointed out earlier, it's him against the United States. You are the only one on his side."

When Brownback refused the request to withdraw, Fleener asked to delay the case until he had legal reviews of the issue from the Iowa and Wyoming State Bar Associations, of which he is a member.

Determined to press on, Brownback instructed a prosecution officer to read the charges against Bahlul. During the several minutes this took, Fleener attempted to communicate with Bahlul through an interpreter assigned to the defense. Bahlul refused to listen to the interpreter, waving him away before the man could even begin to relay what Fleener said.

On and off throughout the hearing, Fleener appeared severely distressed, particularly when Brownback refused his requests and when he was unable to communicate with Bahlul.

Before adjourning the proceedings, Brownback answered questions about his impartiality from the defense, set dates to hear further motions, and set May 15 as a potential trial start date.

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