Detainee & Lawyer Refuse to Participate in Guantanamo Trial

The Bush administration is gamely proceeding with another military tribunal hearing for a Guantanamo detainee. The first trial resulted in an acquittal of the most serious charge and a sentence that amounted to "we're sorry, you can go home now." Unafraid of a second colossal embarrassment, the administration is bringing a second detainee to trial. This one should be an easier win since the defense isn't participating.

Ali Hamza al-Bahlul does not want to be represented by an American military officer. He wants to represent himself. The judge rejected that request and rejected his lawyer's motion to withdraw. The trial was moving forward. Bahlul announced his intent to boycott the proceedings. The judge said Bahlul's interests would be represented by his counsel even if Bahlul chose not to participate. And then Bahlul's lawyer made a gutsy move:

"I will be joining Mr. Al Bahlul's boycott, sitting silently at the table," said Maj. Frakt, who then refused to respond to several questions from the judge.

[more ...]

The judge, Air Force Col. Ronald Gregory, said [Air Force] Maj. [David] Frakt was obligated to participate and that both the lawyer and defendant, despite their wishes, would be required to attend the hearings -- even if they stay silent.

"The commission will not proceed with an empty defense table," Col. Gregory said.

He was scheduled to begin picking a jury of U.S. military officers later Monday.

Maj. Frakt may have hoped to derail the trial by remaining mute. Delaying trials until after a new administration takes office may be the best way to assure that decisions about detainees are made fairly.

Proceeding with a one-sided trial is risky for both parties. By waiving his right to participate in his own trial, Bahlul might later be found to have waived his right to object to any unfairness that occurs at his trial. The government risks a reviewing authority tossing out the conviction.

In a criminal prosecution governed by the Sixth Amendment, a defendant has a right to represent himself if he is competent to exercise that right. A defendant also has the right to the effective assistance of counsel. To the extent that Sixth Amendment principles have anything to do with the Guantanamo trials, it would seem that Bahlul should be allowed to represent himself, or he should be given counsel who is willing to participate in his trial.

In an ideal world, the administration would take a chill pill instead of pressing forward with the trial, given that the military tribunal system may not survive the transfer of power from Bush to Obama.

The U.S. military says it plans trials for 80 of the roughly 255 men held at Guantanamo on suspicion of terrorism or links to al Qaeda or the Taliban. Eighteen prisoners are currently facing charges.

None of those will face a trial under the Bush administration. Why should Bahlul?

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    Detainee and Lawyer boycott (none / 0) (#1)
    by arguewithmydad com on Mon Oct 27, 2008 at 09:59:38 PM EST
    It is interesting that the military lawyers for the Gitmo prisoners have been especially valiant in their protection of their clients in light of the railroading that is happening under the guise of justice.

    simply put, (none / 0) (#2)
    by cpinva on Mon Oct 27, 2008 at 10:03:36 PM EST
    None of those will face a trial under the Bush administration. Why should Bahlul?

    the bush administration has to have something, anything, to show for all the time, energy and funds expended on this. this is really a legacy saving effort.

    a failed one.

    What's commendable (none / 0) (#3)
    by Socraticsilence on Mon Oct 27, 2008 at 10:11:24 PM EST
    Is that basically every one of these guys seems to be getting a decent defense despite the fact that it appears to basically be career suicide to contest the adminstrations show trials to strongly.

    COURAGE BE SUMMONED (none / 0) (#4)
    by Palli on Mon Oct 27, 2008 at 10:13:19 PM EST

    refusal to take part (none / 0) (#5)
    by diogenes on Tue Oct 28, 2008 at 07:31:49 PM EST
    If you refuse to take part, then you dare the government to impose whatever sentence it wishes.  It worked for Hank Reardon.  I don't think it will work for this guy.