Disputes over detainees

At least three war crimes defendants' seek self-representation

April 08, 2006|By LOS ANGELES TIMES

GUANTANAMO BAY NAVAL BASE, Cuba -- Detainees facing war crimes charges should have the right to represent themselves, despite Pentagon decisions that have "messed up" the military's ability to conduct fair trials, an Army defense lawyer said yesterday.

The right of any accused individual to self-representation is one of many issues in dispute as the military prepares to hear cases against 10 so-called enemy combatants held at U.S. detention camps in southern Cuba.

Pretrial jousting between Pentagon-appointed jurists and lawyers for the foreign defendants has centered on issues of fair trial and due process.

In the case of Ali Hamza Al-Bahlul, 37, his military attorney argued yesterday that his client's right to self-representation was as fundamental as the presumption of innocence.

Along with at least two other defendants awaiting trial, Al-Bahlul insists on acting as his own attorney. He has demonstrated in previous appearances the intelligence and decorum to do so, his lawyer told Army Col. Peter Brownback, the presiding officer for the Yemeni's case.

Al-Bahlul's attorney, Army Maj. Tom Fleener, noted that even such notorious defendants as would-be hijacker Zacarias Moussaoui have been allowed to represent themselves.

Despite the sparring, prosecution and defense attorneys have argued in briefs to the Pentagon that the right should be granted in the tribunals.

President Bush, in creating the military commissions after Sept. 11, 2001, called for people accused of aiding al-Qaida to be accorded "a full and fair trial."

In drafting commission rules, however, U.S. Defense Secretary Donald H. Rumsfeld's staff has forbidden self-representation by detainees.

"We can't help it that the secretary of defense and his delegees have messed this thing up, but they have," Fleener told Brownback.

The tribunal is being held under the shadow of international criticism over allegations of human rights violations at the U.S. detention facility, a U.N. recommendation that the camps and tribunal be shut down, and a pending U.S. Supreme Court decision on whether the ad hoc criminal justice process is legal.

As all parties connected to the first three cases have struggled to work through arraignments and pre-trial motions in the past week, there has been confusion over what body of law - military, civilian or international - applies.

In the case of Canadian teenager Omar Khadr, accused of taking part in anti-American hostilities in Afghanistan, lead defense counsel Lt. Col. Colby Vokey complained about the logistics of traveling to Guantanamo and the lack of procedural clarity.

He said he had no confidence that the obstacles to a fair trial are correctable. "What I desperately want to know here is what are the rules?" he said.

In the case of Binyam Ahmed Muhammad, an Ethiopian who also seeks to represent himself, his Air Force reservist lawyer said she was being forced to choose between disobeying a tribunal order or risk being disbarred for participating in a case in which attorney-client privilege and other basic rights were violated.

Tribunal chief prosecutor Col. Morris Davis said he didn't see any shortcomings that could not be overcome.

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