Whatever happened to Khalid Sheikh Mohammed (often called KSM)? KSM is the self-proclaimed mastermind behind 9/11. Recall that the Administration wanted to try him for 9/11 crimes in a federal court in New York. New Yorkers objected that option in no uncertain terms, so this Administration is now trying him before a military commission at Guantanamo Naval Base in Cuba. He was captured in 2003 and transferred to Guantanamo in 2006. Since then, what has happened? Delay. Lots of delay.
Recent military actions should cause even more delay. One of the Army lawyers assigned to represent KSM, Major Jason Wright, has now resigned from the military. He resigned because the Army told him he has to leave the case to attend a graduate course, which he wanted to defer and which he could easily defer. The defense lawyer believes that his removal raises ethical issues. He has been counsel for KSM for several years and, he said, it was hard to gain the trust of KSM. That is why, he said, he did not want to be relieved of the case. The Pentagon’s response: “The Judge Advocate General denied the second deferral request because a suitable and competent military defense attorney replacement was available, Major Wright was not the lead or sole counsel, and it ensured Major Wright remained professionally competent and competitive for promotion.” Major Wright then says that he decided to throw in the towel and leave the Army altogether.
Sometimes it is difficult to understand the government mind as applied to legal matters. The decision to prevent Major Wright from delaying his class is just the most recent example. Earlier, the Military Commission’s original rules, like its changed rules of October 2005, did not allow the accused to represent himself. The Commission, by fiat, assumed that no defendant was competent enough to defend himself, although the Commission thought that a defendant was competent enough to plead guilty.
The standard rule in the country is that a criminal defendant has a constitutional right to represent himself in a state or federal trial if he voluntarily and intelligently elects to do so. The Commission rules, until Congress imposed a change by statute, forbade all pro se representation. The rule that prohibited pro se representation did not serve the detainees well, for it prohibited competent adults from exercising the right that every competent defendant has in all American criminal courts, state and federal.
This no-pro se rule also did not serve the military well. Consider the case of al Bahlul, a detainee charged with war crimes who refused civilian or military counsel. During the August 2004 war crimes proceedings, Al Bahlul asked to represent himself. Judge Brownback, the military judge, immediately said no. He conducted no hearing to determine whether al Bahlul was competent to defend himself. He just denied the request.
Then, al Bahlul asked to make a statement, and he asked not to be interrupted. He started speaking and said:
As God is my witness, and the United States did not put any pressure on me, I am an al-Qaeda member, and the relationship between me and Sept. 11 . . .
“Stop!” yelled Judge Brownback, who interrupted him.
Brownback told the lay members of the tribunal members — incorrectly — that he cut off al Bahlul because the defendant’s statement, which was not under oath, was inadmissible as evidence. That is false. Statements made in open court are evidence, even if not made under oath. Admissions against interest are admissible. Hence, the prosecution objected to the judge’s ruling regarding admissibility. Defense lawyers chimed in. Eventually, after the lawyers spoke, Judge Brownback turned back to al Bahlul, who, it seems, had lost his train of thought and sat down! We never heard what al Bahlul had to say. His complete statement might have been interesting.
Later, during the proceedings in January of 2006, al Bahlul again asked to appear pro se. He made clear that he rejected not only his military counsel but also his civilian counsel:
I heard the judge say that I have appointed volunteer lawyers. I would like to tell the judge and the people present here that I never appointed any civilian lawyers, not directly, and not in writing. And I am surprised to hear that from you. This is not because—I’m not surprised that some people [the civilian lawyers] volunteered their services. Many people would like to volunteer in this case just to get some fame. They ask for fame. They want fame for themselves and I do not appoint anyone by writing or even by inference.
Finally, Congress changed the Commission rules by statute. The law now accepts the basic right of a defendant to represent and speak for himself.
In late 2008, a military jury convicted al Bahlul of conspiracy to commit war crimes, providing material support for terrorism, and solicitation of others to commit war crimes for his part in September 11, 2001, terrorist attacks. He was sentenced to life imprisonment.
Then came the appeals. In July of 2014, the D.C. Circuit (en banc) rejected Bahlul’s ex post facto challenge to his conspiracy conviction and then remanded that conviction to the original panel to dispose of several remaining issues. In addition, the D.C. en banc court vacated his material support and solicitation convictions as “plainly” violating the Ex Post Facto Clause. The conclusion of his legal journey lies sometime in the future.
Another peculiarity is what happened during oral argument in Hamdan v. Rumsfeld. In that case, the Supreme Court (5–3), reversed a decision that then-Judge John Roberts had joined when he was on the D.C. Circuit. Hamdan held, first, that it had jurisdiction. In other words, the Detainee Treatment Act of 2005, which limited federal jurisdiction, did not apply to pending cases. Second, the Uniform Code of Military Justice did not authorize the President to set up “military commissions” (or “war crimes tribunals” in popular parlance) to try alleged war criminals.
What is intriguing is the oral argument, for it suggested that the Government’s assertion of legal power was amazingly broad. During oral argument in the Hamdan case, Justice Breyer asked the Government, “And if the president can do this, well, then he can set up commissions to go to Toledo and, in Toledo, pick up an alien and not have any trial at all, except before that special commission.”
The Government could have responded that Hamdan was not a U.S. citizen nor was he an alien picked up in Toledo. He was an alien captured in Afghanistan. The military cannot simply prosecute aliens it finds in Toledo. However, if the hypothetical alien had been walking in Toledo and the Government could prove that he was an enemy spy who had been inside enemy lines fighting against the United States, and then sneaked into the United States as a spy, he would be like the aliens whom the Government captured in Ex parte Quirin. Shortly before the Hamdan decision, Justice O’Connor told us that Quirin is the law today. That is what the Government could have argued.
However, that is not the position that the U.S. Government embraced. Instead, it responded: “This is much more of a call for military commissions in a real war than, certainly, the use of military commissions against the Medoc Indians or any number of other instances in which the President has availed himself of this authority in the past.” Justice Breyer did not appear interested in the Medoc Indians.
Some of these actions came during Administration of Barack Obama, while others came during the Administration of George W. Bush. Yet others were decisions that straddle both Administrations. In each case, the Government should try better to justify its decisions or, failing that, make other decisions.