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Article Excerpt
INTRODUCTION
I. DETAINEES' PROCEDURAL DEMANDS AND THE GOVERNMENT'S RESPONSE A. Pre-Hamdan Procedures for the Military Commissions B. Pre-Hamdan Demands for Self-Representation and/or Boycott C. Pre-Hamdan Responses to the Detainees' Procedural Requests D. Self-Representation and Boycotts in the Military Commissions Act II. ANALYZING GOVERNMENT RESPONSES TO THE DETAINEES' PROCEDURAL REQUESTS A. Interests Implicated by the Detainees' Requests B. Evaluating Responses to Self-Representation 1. Standards from U.S. Military and Civilian Criminal Law 2. Standards from International Law and Tribunals 3. Third-Party Interests and Self-Representation C. Evaluating Responses to Boycott Requests D. Evaluating Responses to Requests To Dismiss Counsel and Boycott Simultaneously III. TOWARD A NORMATIVE SOLUTION FOR DETAINEES' PROCEDURAL REQUESTS A. Requests To Dismiss Counsel and Boycott Simultaneously B. Requests for Self-Representation with Classified Evidence C. Examining the Standby Counsel Solution D. Amicus Curiae Counsel as a Superior Solution CONCLUSION
INTRODUCTION
In the weeks and months following the September 11, 2001, terrorist attacks, (1) the Bush Administration began to develop plans to bring suspected terrorists to justice. (2) With the President's Military Order of November 13, 2001 ("Military Order"), the executive branch announced that it would administer trials by military commission of non-U.S, citizens who were reasonably believed to have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor" or "knowingly harbored [such] individuals." (3) Based on the Military Order, the Secretary of Defense would prescribe the procedures for the trials by commission. (4) In January 2002, the United States began to transfer suspected terrorists to a detention facility set up by the Department of Defense at the naval base at Guantanamo Bay, Cuba. (5) On March 21, 2002, Defense Secretary Donald Rumsfeld promulgated the original commission trial procedures. (6) Only ten detainees out of more than 700 were charged under the original regulations (7) before the military commission proceedings were suspended following the U.S. Supreme Court's June 2006 decision in Hamdan v. Rumsfeld. (8) So far, three of the ten detainees who were originally charged have been recharged (9) under new Department of Defense rules (10) promulgated in accordance with the post-Hamdan Military Commissions Act of 2006 ("MCA"). (11)
A striking trend has emerged among the ten detainees who have been charged in the military commissions: at least five of them announced their intentions to represent themselves or to boycott their own trials. (12) Three attempted to do both simultaneously, thereby attempting to waive any defense whatsoever. The detainees are making these procedural requests much more frequently than is common among defendants in civilian criminal proceedings in the United States. (13)
While scholars, commentators, politicians, and the general public have debated the legality and fairness of the military commissions since the President issued the Military Order, (14) the public discourse has not considered how the United States should respond to detainees who seek to represent themselves or boycott their trials, (15) Rules precluding defendants from accessing independent civilian courts, (16) the prolonged detentions of individuals without charges, (17) allegations of prisoner abuse at the Guantanamo facility, (18) and rules for withholding classified evidence from the detainees (19) have been more prominently debated.
These concerns are extremely important, but the questions of self-representation and boycott are also crucial. There is strong historical support for granting detainees the rights to self-representation and boycott. Throughout the entire history of English criminal jurisprudence, the Star Chamber was the only criminal tribunal that imposed counsel upon an unwilling defendant. (20) American jurisprudence from colonial times to the present has recognized the right to self-representation. (21) The right is overwhelmingly available in contemporary international legal bodies and instruments as well. (22) International and domestic legal rules and precedent also support the right to boycott. (23)
The established protections for these procedural rights stem from public policy concerns for the defendant's individual autonomy. As the U.S. Supreme Court has stated, the right to self-representation "affirm[s] the dignity and autonomy of the accused." (24) Because it is the defendant--not the attorney--who "suffers the consequences if the defense fails," (25) the Court has reasoned that the defendant must be permitted to control his own defense. Thus, self-representation "embodies one of the most cherished ideals of civilization: the right of an individual to determine his own destiny." (26) Similarly, the right of the defendant to be voluntarily absent from his trial also can be justified under an autonomy rationale: the defendant has a right to absent himself from his trial because he is the person most affected by its outcome and should be able to choose to boycott. (27)
The primary argument against granting these rights is based on the effect that they can have on the fairness of proceedings. In the context of self-representation, several judges and scholars have argued that the scenario in which a nonlawyer defendant defends a case against a seasoned prosecutor undermines the court's ability to achieve due process. (28) Similar concerns related to due process, based on perceived benefits of having the accused present when his life and liberty are in jeopardy, form the main argument against granting voluntary waiver of presence. (29)
These concerns are particularly acute in the military commission context. Since September 11, 2001, the U.S. government has faced a need to develop rules for military commissions that allow the nation to protect its security while adhering to rule-of-law norms. The Guantanamo military commissions have been controversial and subject to significant legal challenges since their inception. (30) Currently, many are calling for Guantanamo's closure. (31) As even critics of the Bush Administration's detention policies acknowledge, though, some of the detainees are too dangerous to release, and the evidence against them is too sensitive to be presented in a U.S. civilian court. (32) Therefore, the United States will almost certainly try a significant number of its war on terror detainees in ad hoc military tribunals at Guantanamo or on U.S. soil. (33) The United States has been a leader in developing rule-of-law standards worldwide. (34) Because the fairness of these proceedings is a matter of international political concern,3s the world will closely watch how the United States handles detainee requests to represent themselves, to boycott their trials, or to do both simultaneously.
As the United States wrestles with whether and how to reform procedures for trying war on terror detainees, this Note examines whether a defendant in a military tribunal should be able to dismiss his counsel and/or boycott his trial. (Because detainees have often attempted these maneuvers in tandem, they are intertwined at Guantanamo and are best examined side-by-side.) In Part I, I describe the pretrial procedural requests that charged detainees have made, the government's response before Hamdan was announced, and the government's post-Hamdan response (embodied largely in the MCA). In Part II, I analyze how well policy makers and adjudicators have responded to the detainees' requests by balancing the defendant's individual autonomy rights against third-party interests in the overall legitimacy of the military commission system, its capacity to reach just outcomes, and national security. I fault the government responses for flouting international and domestic legal rules and precedent. That said, I recognize two complications that allowing these autonomy rights would present: no one would be present to represent a defendant's interests if he went forward with the trial (and did not enter into a plea bargain) (36) but then boycotted the proceedings and dismissed his lawyer simultaneously; and if a defendant elected self-representation, he would not be able to review classified evidence (including potentially exculpatory evidence) in his case. In other words, granting the detainees' procedural requests would in certain situations make portions of the proceedings entirely nonadversarial, which would compromise the ability of the already maligned military commission system to reach just outcomes. Part III proposes a solution that balances the detainees' autonomy rights and the third-party interests in adversarial process. In situations where granting a detainee's procedural request would sacrifice adversarial process, the tribunal should not force counsel on an unwilling detainee, but should appoint amicus curiae counsel to test evidence from the defense's perspective on behalf of the tribunal.
I. DETAINEES' PROCEDURAL DEMANDS AND THE GOVERNMENT'S RESPONSE
Some detainees were charged with crimes as early as February 2004, but no detainees were put on trial prior to the June 2006 Hamdan decision and the MCA's subsequent rewriting of military commission rules. (37) The military commission system was riddled with confusion, including problems with defense team staffing and translation services; (38) procedural delays; (39) and challenges in U.S. federal courts between 2004 and 2006. (40) The commissions did hold pretrial hearings during this time. (41) In malting their first public appearances at the pretrial hearings, many of the charged detainees sought to represent themselves and/or announced their intention to boycott their trials. (42) Thereafter the government had to respond to these requests, which it did in the MCA. So far, three detainees have been recharged under the MCA. (43)
A. Pre-Hamdan Procedures for the Military Commissions
A brief examination of the procedures that the Secretary of Defense established for the military commissions on March 21, 2002, sheds light on the context in which the detainees announced their procedural requests prior to Hamdan. These regulations provided that the Secretary of Defense or a designee would appoint members of each military commission, including the presiding officer, (44) who would lead the commission proceedings. (45)
The proceedings would begin when the appointing authority referred the charges against a detainee to the commission. (46) Once referred, the regulations mandated that the accused be notified of the charges against him. (47) He had the right to reach a plea agreement before trial. (48) The regulations also required the presiding officer to obtain evidence by legal process so as "to ensure a full and fair trial." (49) At the preliminary proceedings, in a process similar to voir dire, the presiding officers permitted defense lawyers to question them and the other members of the commissions to demonstrate that the commission members were impartial. (50)
B. Pre-Hamdan Demands for Self-Representation and/or Boycott
Only ten detainees were charged under the 2002 Department of Defense procedures, including the preliminary proceedings. At the preliminary hearings, five of the ten requested to represent themselves or to boycott future proceedings. (51) By the time they were brought in front of commission members and outside monitors for the first time, all of the charged detainees had been in U.S. custody for several years. (52)
The detainees made known their procedural requests in several different ways, often combining their requests so that they simultaneously were asking to boycott and to represent themselves. Ali Hamza Ahmed Sulayman al-Bahlul, who allegedly served as Osama bin Laden's bodyguard and produced propaganda videos for al Qaeda, (53) requested to represent himself at his first pretrial proceeding in August 2004. (54) Col. Peter Brownback III, the presiding officer, said he believed the military commission rules did not allow the request, but that al-Bahlul's attorneys could submit a memorandum addressing the right to self-representation, which they did. (55) In 2005, John D. Altenburg, Jr., the appointing authority for the Defense Department's Office of Military Commissions, issued a memo denying al-Bahlul's request. (56) Yet in January 2006, al-Bahlul again addressed Colonel Brownback, stating: "[D]o what you have to do.... This life will go on and will be gone at one point.... God will rule based on justice. And those who call upon other than God are not calling about anything." (57) He held up a piece of paper with the word "boycott" written in Arabic and repeated the word three times in English. (58) While one cannot know al-Bahlul's true motives, by maintaining his request to represent himself while simultaneously making known his intention to boycott, it appears he wanted his hearing to go on with absolutely no defense.
On April 5, 2006, Omar Ahmed Khadr, an accused al Qaeda fighter and Canadian citizen, announced his intention to boycott his trial. In doing so, he sought to challenge the legitimacy of the proceeding, describing it as inhumane and unfair. (59) The trend continued (60) when, on the next day, Binyam Ahmed Muhammad told his presiding officer that the proceeding "is not a Commission, this is a con-mission, is a mission to con the world." (61) An Ethiopian charged with conspiring with al Qaeda members to commit terrorism, Muhammad announced that he wanted to dismiss his counsel: "I wish no representation ... I didn't ask for a trial. You can kill me tomorrow; I don't really care." (62)
Like al-Bahlul and Muhammad before him, on April 25, 2006, Mohammed al-Qahtani, a Saudi citizen captured in Pakistan and allegedly the individual who was supposed to be the "20th hijacker" on September 11, (63) proclaimed his intentions to dismiss his counsel and boycott his trial. "I don't want an attorney," he said. "I don't want a court." (64)
Finally, on April 27, 2006, Ghassan Abdullah al-Sharbi, a Saudi accused of conspiring with members and associates of al Qaeda to commit terrorism, attack civilians, murder, and destroy property, formally requested the right to self-representation. He claimed that he simply was going to stand in front of the tribunal and recount his actions because he was "proud" to have fought against the United States, he was willing to pay the price, and he would feel honored to spend time in prison for fighting for a cause that he believed in. "I did not come here to defend myself," he said. (65)
C. Pre-Hamdan Responses to the Detainees' Procedural Requests
Once the detainees made their procedural requests, the military commission members and other government officials quickly had to decide how to respond. The assigned military defense counsel also faced difficult questions about how to treat their clients' wishes and whether to challenge commission decisions. As lawyers representing Guantanamo defendants have pointed out, "[t]here is no question more fundamental to a criminal proceeding than the question of who will represent the defendant." (66)
When al-Bahlul, Muhammad, al-Qahtani, and al-Sharbi requested to represent themselves, their defense attorneys found themselves in an ethical conundrum. The lawyers--all members of civilian state bar associations as well as Judge Advocate General's (JAG) Corps members--feared that remaining on a case against the wishes of their clients would violate their ethical duty to respect their clients' desires. (67) The attorneys sought advisory opinions on this ethical question from their state bar ethics committees, and they received divergent results. For instance, the Kentucky State Bar deemed it ethical for Lt. Col. Bryan Broyles to continue to represent al-Qahtani, (68) but the State Bar of California told Lt. Cmdr. William Kuebler that he could no longer represent al-Sharbi given al-Sharbi's wishes. Kuebler then made a motion to withdraw from the case. (69) Al-Bahlul's attorney Maj. Thomas Fleener, who is licensed in both Wyoming and Iowa, also sought withdrawal to avoid violation of state ethics rules. (70)
Neither policy makers nor the commission adjudicators seemed sympathetic to the ethical dilemma facing the attorneys or to the detainees' attempts to exercise their rights. Policy makers ignored established due process norms. The regulations eventually promulgated stated first that "[t] he Accused must be represented at all relevant times by Detailed Defense Counsel," (71) and second, that "Detailed Defense Counsel shall so serve notwithstanding any intention expressed by the Accused to represent himself." (72)
Relying on the Defense Department rules, presiding officers or appointing authorities denied all detainees the right to self-representation. The adjudicator of al-Qahtani's and al-Sharbi's cases cited the Defense Department order alone to justify his decision that the accused could not dismiss counsel. He made no mention of precedent allowing self-representation. (73) Muhammad's presiding officer, Colonel Kohlmann, reached the same conclusion. (74)
Al-Bahlul's case engendered more debate. He first asked to represent himself in August 2004. (75) When denying al-Bahlul's request, the appointing authority for the Office of Military Commissions, John D. Altenburg, Jr., stated that detainees could not represent themselves in light of the security risks and procedural impracticalities, such as the detainees' unfamiliarity with substantive law, rules of evidence and procedure, and the English language. "An unrepresented accused will be unable to investigate his case adequately because of national security concerns," Altenburg wrote. "An accused confined at Guantanamo, Cuba, who is unfamiliar with applicable substantive law, rules of evidence and procedure, will not be able to present an adequate defense." (76) He continued, noting that if a pro se defendant could not understand English, translation requirements would be "exponentially magnified." (77) Finally, at the time, the rules of procedure permitted closed hearings in which classified evidence could be presented. Detainees would need to be excluded from such hearings, but defense attorneys could be present to represent their clients' interests. (78) Altenburg's memo concluded, "Self-representation under these unique commission circumstances would be ineffective representation, and result in an unfair proceeding." (79)
Despite Altenburg's memo, Colonel Brownback still heard arguments on whether al-Bahlul had a right to self-representation. (80) Al-Bahlul's lawyer relied on Faretta v. California, (81) the Sixth Amendment, the Due Process Clause of the Fifth Amendment, U.S. criminal law, U.S. statutory law, and customary international law to argue that his client should have the right to dismiss him. (82) For the first time, the prosecution agreed that al-Bahlul had a right to self-representation. (83) The prosecutors argued, however, that the presiding officer was bound by Altenburg's memo and that he therefore could not recognize a right to self-representation in the commission proceedings. At most, they claimed, he could ask Altenburg to reconsider the matter. (84) Fleener countered that Brownback had authority to establish the right on his own. (85) Brownback said he would rule "in due course," but he did not issue a ruling prior to Hamdan. (86) Thus, there was no self-representation at Guantanamo pre-Hamdan.
As for the right to boycott, the Department of Defense regulations stated: "The Accused may be present at every stage of the trial before the Commission ... unless the Accused engages in disruptive conduct that justifies exclusion by the Presiding Officer." (87) This phrase granted detainees a right to be present, but by using the word "may" seemed to imply a right to be absent as well. However, in August 2005, the Department of Defense amended the procedures to "make clear that the accused shall be present except when necessary to protect classified information...." (88) These regulations, promulgated pre-Hamdan, no longer permitted the accused to voluntarily waive his presence. No reason for the change was given.
Despite this rule change, even after August 2005, military adjudicators at Guantanamo permitted boycotts during the pre-trial hearings. After al-Qahtani boycotted, his defense counsel, Lieutenant Colonel Broyles, was permitted to conduct voir dire of the Presiding Officer without al-Qahtani present. (89) Similarly, Lt. Col. Colby Vokey, Khadr's attorney, conducted the voir dire of presiding officer Col. Robert Chester directly following his client's boycott pronouncement. (90)
Because of the ban on self-representation, no adjudicator officially ruled on what would happen if a detainee requested both to represent himself and boycott his trial. During al-Bahlul's proceedings, however, Colonel Brownback stated, "Obviously a person who will not participate in the proceedings cannot represent himself," (91) making clear his views on simultaneous requests for self-representation and waiver of presence.
D. Self-Representation and Boycotts in the Military Commissions Act
Hamdan and the MCA sought to make the structures and processes of the...
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