June 02, 2008



At terrorism trials, is no defense a defense?

Military defense lawyers face a dilemma at the war court: Is offering up no defense the way to defend an alleged terrorist at trial?


The Military Commissions building is seen in this August 2004 photo at the US Navy Base at Guantánamo Bay, Cuba.
The Military Commissions building is seen in this August 2004 photo at the US Navy Base at Guantánamo Bay, Cuba.

GUANTANAMO BAY NAVY BASE, Cuba -- Can no defense be a legitimate defense at a war crimes trial?

Attorneys for alleged terrorists who could face life prison sentences are grappling with this dilemma as a succession of detainees announce plans to boycott the first U.S. war crimes tribunals since World War II.

Most, but not all, have also fired their Pentagon-paid lawyers, or limited what they can do in their defense -- actions that critics say threaten to undermine the legitimacy of any future convictions.

But the chief prosecutor doesn't agree. The burden at the war court, he says, is not for an alleged terrorist to prove his innocence but for the Pentagon to prove his guilt.

''The accused doesn't have to do a damn thing,'' said Army Col. Lawrence Morris, chief prosecutor for the military commissions.

``And it is not necessarily a negligent or inappropriate defense to just shoot holes in the government's case and insist that they failed to meet their burden.''

Morris should know. Before this assignment, prosecuting alleged war criminals, he served as chief of the Army's Trial Defense Service -- responsible for all of the Army's lawyers as they defended American soldiers at court-martial.

But this is the war court, and unlike U.S. troops who generally welcome an opportunity to prove their innocence, with an American military defense lawyer, the detainees don't.

The next test will come Thursday when the military brings the five alleged 9/11 architects to arraignment -- and Khalid Sheik Mohammed and his alleged co-conspirators say whether they will work with their U.S. military counsel.

These men would face the death penalty if convicted, which may be a greater incentive.

But for those who could face life in prison, the latest challenge came last month when alleged Afghan spy Mohammed Kamin, in his 30s, told his military judge that he didn't want to attend his trial.

Moreover, Kamin said he didn't want any help from his Pentagon-appointed defense lawyer, Navy Lt. Rich Federico, who returned to the United States from a posting in Italy to help defend captives.

''I don't want him,'' Kamin said at the commission hearing here, sitting beside Federico. ``I don't want another one. I didn't want to come to court.''


Defense lawyers find this troubling on many counts.

Some of the alleged terrorists have spent years in detention without ever consulting lawyers, and now, based on perhaps a sense of hopelessness or distrust, they say they don't need attorneys.

And they insist that they want to offer no defense.

The 30-something Afghan is accused of joining al Qaeda in 2003, spying on U.S. forces near Khost, Afghanistan, and setting up and firing missiles in their direction. Nothing in his charge sheet suggests that anyone was hurt.

Kamin's judge, Air Force Col. W. Thomas Cumbie, ordered Federico to serve as his defense lawyer anyway -- unless Federico's Indiana bar reported back an ethical conflict.

Meantime, the judge told the Navy lawyer to study the government evidence that might be used at the Kamin trial.

That allows the lawyer to prepare, if not stand up in court, while working through the ethics of defending a client who wants no defense.

The judge is also permitting the lawyer to see the detainee's prison camp mental-health records -- in case the prisoner has a profound enough psychiatric condition that prevents him from making his own decisions.

Kamin may be just one man, an alleged al Qaeda foot soldier facing life in prison. But Federico argued that, with seven of the eight men before the court engaging in some sort of boycott, the war court is now facing a ``systemic issue.''

''How do I represent him? That's the key question,'' he told the judge. ``This is not a dilemma that faces me or faces this court, but it faces the whole military commissions system as well.''

But this is no blanket one-size-fits-all boycott.

Each of the Arab and Afghan detainees has dealt with it differently. And so have their Pentagon-appointed attorneys -- a collection of reservists and active-duty Judge Advocate General officers, who have converged on this remote base from posts around the world as well as from civilian law practices to defend clients at the war crimes tribunals.


Salim Hamdan of Yemen, one of two alleged Osama bin Laden drivers and bodyguards now charged, has said he wants to keep his lawyers, but doesn't want them to say a thing in court when he opts to boycott. His attorneys have so far continued to file motions for his defense, but at the last hearing sat silently because Hamdan was boycotting.

Ali Hamza al Bahlul of Yemen, bin Laden's alleged media secretary, has fired every U.S. military lawyer assigned to him -- and said he will represent himself, by not doing a thing. His judge has appointed Bahlul's latest defense lawyer, Army Maj. David J.R. Frakt, to serve as ''standby counsel,'' a status that means Frakt could be ordered to defend Bahlul if the detainee is found incapable of doing it himself.

Frakt's other client is Mohammed Jawad, an Afghan accused of tossing a grenade into a van at the Kabul bazaar. Two U.S. soldiers were hurt. Jawad refused his defense attorney and was forced into court the first time, but came voluntarily the second time, Frakt said, for fear that he would be forced again.

Now, Jawad has allowed Frakt to defend him for two limited purposes -- to attack the legitimacy of the war court, and to try to improve his prison conditions.

What of a trial?

''There is precedent for defendants -- even defendants facing very serious charges -- to simply remain mute in the face of those charges. And they are well within their rights to do so,'' said Frakt, who in civilian life is a law professor in California.

That's because, in the end, it is up to a prosecutor to prove guilt, not a defense lawyer to prove innocence.

But generally, he said, ``I think it would be frustrating to a counsel who believed that he had a potentially viable defense and was unable to put it on because the client did not wish him to do so.

``Any trial lawyer likes to mix it up in the courtroom, and it's supposed to be an adversarial process. But the desires of the client have to remain preeminent.''

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