The Defense Will Not Rest
William Kuebler, a navy lieutenant with clippered hair and a round face, sat in his crisp summer whites at a heavy wooden table in the courtroom at Guantánamo Bay. To his left, at the other end of the table, was a young Saudi named Ghassan Abdullah al Sharbi, who was reputed to be one of the most dangerous terrorists on the planet. Al Sharbi was about to be tried for war crimes, and Kuebler was supposed to defend him.
The problem was, al Sharbi did not want to be defended. Kuebler knew that, of course: Al Sharbi had refused to even meet with him for the past five months, finally acquiescing only four days earlier and then only long enough to tell Kuebler to go away. And really, who could blame him?
By April 2006, al Sharbi had already been locked up for almost four years at Guantánamo, where the military had declared him an “enemy combatant.” President Bush had claimed the authority to continue holding him—along with hundreds of men already in custody, as well as any other foreign national he might decide was an enemy combatant—until the end of the war on terror, a sentence that worked out to somewhere between indefinite and forever. His cell was eight feet long and not quite seven feet wide, with a bunk and a sink and, on the floor, a hole for a toilet and a painted arrow pointing toward Mecca. The lights were kept on around the clock, and he was allowed out only in shackles to shower and exercise for a half hour a few days a week. Al Sharbi had also almost certainly been subjected to “enhanced interrogation techniques,” some of which until recently were considered torture and, according to the State Department, still are when practiced by Iran, Libya, Turkey, or any of a dozen other countries.
The only thing that made al Sharbi exceptional was that he was one of only a few Guantánamo detainees who’d actually been charged with a crime, albeit a novel one in the annals of international-warfare law: conspiracy to commit, among other things, murder by an unprivileged belligerent—which basically means he thought about killing American soldiers he believed he was at war with. (He was never accused of killing, or even trying to kill, anyone.) He would be prosecuted by the men at the table on the other side of the room, an Air Force captain and a Navy Reserve lieutenant, who would be allowed to present their case using evidence the military considered so sensitive that al Sharbi would not be allowed to see it, let alone contest it. The judge, who was known in the proceedings as the presiding officer, was a navy captain. The jurors would also be military officers.
All things considered, al Sharbi preferred not to be defended by an American military officer. He wanted to speak for himself.
Bill Kuebler did not find that to be an unreasonable position.
Nor was it a tenuous one, legally speaking: The right to self-representation had been a codified tenet of American law for 217 years. Under established rules, whether a man can competently defend himself is irrelevant; he need only be competent to make the decision to represent himself. Kuebler believed al Sharbi was. Therefore, Kuebler believed he had an ethical obligation to step aside. A lawyer can’t force himself upon an unwilling client, and no credible court would ever allow such a thing. To do so would be to replace a vigorous defender with a prop, an actor in a charade that only mimicked a proper trial.
Kuebler sat quietly at the defense table while the presiding officer asked al Sharbi if he wanted the lieutenant to be his lawyer.
Did he want a different military lawyer?
No. “To me,” al Sharbi said, “it’s the same circus, different clown.”
Did he want an American civilian lawyer?
The presiding officer asked about al Sharbi’s education (a bachelor’s degree from Embry-Riddle Aeronautical University in Arizona), about his experience as a lawyer (none), whether he’d read and understood the various orders and rules governing the military commissions (not yet), and whether he would abide by those rules.
“I’m not going to be violent or cause troubles or cause commotions,” al Sharbi said. “That’s what I’m telling you.”
The presiding officer explained, in great detail, why he thought it would be unwise for al Sharbi to proceed without an attorney. If convicted of the single conspiracy charge against him, he would face what the presiding officer called “prolonged confinement,” which was another way of saying life in prison. Al Sharbi, in turn, argued that the commission was illegitimate and that accepting a military lawyer would make him complicit in that illegitimacy. As it would Kuebler, too. “I would have maximum respect for him if he stayed out of the whole process,” al Sharbi said. “Just as a person to a person.”
The presiding officer called a short recess to decide whether he would permit al Sharbi to represent himself. Fifteen minutes later, he announced his findings.
“I find that you are a fluent English speaker.…”
Kuebler brightened. A good start.
“I also find that you are well educated.…”
Oh, my God, Kuebler thought, is he actually going to let al Sharbi represent himself?
“However, I also find that you are not familiar with the Commission Law and rules.…”
How could he be familiar with rules he just said he hadn’t read yet?
“I also find that you are not qualified to have access to classified information and that you would not be permitted to be present during closed sessions of these proceedings.” In other words, al Sharbi could be excluded from parts of his own trial. “Therefore,” the presiding officer continued, “I find that if you do have a right to represent yourself, that you are not qualified to do so.”
And finally: “I also find that MCO 1”—the first military-commissions order—“explicitly requires that you be represented at all times by detailed defense counsel.” He glanced at Kuebler. “So with that, Lieutenant, you are directed to fulfill your responsibility as detailed defense counsel in this matter.”
Kuebler was pissed. Yes, he knew the rules; but he’d also hoped those rules might bend under the weight of such a fundamental right, especially when argued by a clearly competent defendant. Why else would the presiding officer have gone through the motions—so convincingly that Kuebler believed, if only for a moment, that al Sharbi had actually won?
Because it was all part of the show. They were never going to let al Sharbi represent himself, Kuebler realized, because the rules say he can’t represent himself. All the questions and answers, the talk about risks and consequences and who should represent whom—mere stagecraft, a recitation of a predetermined script. A show.
And he was being forced to play a role, that of the zealous defender in his crisp summer whites.
“It took me a while to figure out the system is rigged,” Bill Kuebler was saying one day last spring, more than a year after he’d been ordered to defend a man against his will. “When it hit me how ridiculous and unjust and farcical this is? That was it. That was the moment I realized it was all a sham.”
Kuebler is not a radical or a gadfly or even a liberal. He is, rather, a conservative Republican and devout Christian, a husband and father, who left a lucrative career as a civil litigator to join the navy and serve his country at the relatively late age of 28. When he’s not in uniform he favors buttoned-up polo shirts and khakis, which make him look like an office manager or perhaps an insurance adjuster. And when he speaks—when he accuses his government of rigging military tribunals to the point of farce, of mocking the basic rule of law he swore to uphold—he does so with all the passion of an office manager discussing, say, the supply of ink cartridges and paper clips: drily and succinctly, as if he is making statements of fact no more or less obvious than the color of the sky.
When President Bush announced, in November 2001, that a new class of foreign ﬁghters—what the administration would call enemy combatants—would be subjected to trial by military commissions, Bill Kuebler did not find the idea objectionable. Quite the opposite: He believed the attacks of September 11—an act of war committed by men who were not soldiers of a recognized army yet who clearly were more organized and dangerous than common criminals—marked a “paradigm shift,” an event so traumatic that it required modifying the rules of detention and perhaps even those of warfare itself. “Without giving it any thought, I generally accepted the concept of enemy combatants,” he says. If America truly faced a new kind of enemy, then America would need new policies to deal with those enemies.
Kuebler assumed those policies would resemble established military law, that the commissions would be a form of court-martial conducted on or near the battlefield. “If you’d asked me in November 2001,” he says, “I would have thought there’d be a bunch of JAGs in fatigues in Afghanistan going through four, five, 800 files of enemy combatants, and they’d deal with them.”
Instead, the Bush administration, in January 2002, opened the prison camp at Guantánamo Bay and eventually stocked it with more than 700 men and boys whom former Secretary of Defense Donald Rumsfeld described as “among the most dangerous, best-trained vicious killers on the face of the earth” and whom President Bush called “the worst of the worst.” And yet after almost four years, not a single one had been tried for any crime by a military commission; only ten had even been charged with anything, and none of those could be considered terrorist masterminds. (“They’re really nobodies,” Kuebler says. “I guess I suspected there’d be a little more punch.”) The rest were designated as enemy combatants who could be locked away until the war on terror was finally declared over.
And still, even by late 2005, Kuebler had no howling objection. If anything, he was intrigued by the commissions, which were loosely based— very loosely, and mostly in name only—on a military trial system that had last been used more than sixty years before, during World War II. “It was fascinating, cutting-edge law,” he says. “And to be involved in this new system, this new paradigm for dealing with terrorism, was historical.”
He asked to be transferred from his role as legal adviser at the naval base in Groton, Connecticut, to defend detainees before the commissions. He wasn’t choosing sides—that is, he wasn’t aligning himself with alleged terrorists he suspected had been wrongly accused—but rather volunteering for a necessary and honorable role. If the commissions were going to be fair, the accused would require a proper defense. That is a concept so basic that it’s beyond debate. Even the Nazis had lawyers at Nuremberg. “I didn’t come to this anti-Bush or anti-war on terror or anti anything,” Kuebler says. “I approached it with the idea of affording the system a presumption of legitimacy.”
Kuebler’s request was granted, and in November 2005 he flew to Guantánamo to meet his assigned client—only to be told that al Sharbi did not want to see him.
As it happened, Kuebler flew to Guantánamo on the same plane as
another military defense lawyer whose client also did not want to see
him. Tom Fleener is a major in the Army Reserve, 40 years old and still
army trim, with brush-cut black hair and thick eyebrows that hop and
twitch with the inflections in his voice. He’s an Iowa boy who joined
the infantry out of Ames High School, went to college and law school,
and then spent eight years as a JAG before mustering out in 2003.
Unlike Kuebler, Fleener was fully aware before he got on the plane that Ali Hamza Ahmad Sulayman al Bahlul did not want an American military officer defending him before a military tribunal. In fact, al Bahlul had demanded to represent himself more than a year before, in the summer of 2004, when he was initially charged with a war crime. His request was denied for the same reason al Sharbi’s eventually would be: It was against the rules.
At the time, Fleener was an assistant federal public defender in Wyoming, a job he liked in a place he liked. He paid only casual attention to Guantánamo, following the news accounts with not much more than a professional curiosity. But then some buddies in the JAG Corps briefed him on the commissions and, more important, on al Bahlul. By mid-2005, Fleener was studying more intently, poring through Department of Defense memorandums and presidential orders and the commission regulations. He was shocked by what he found: The rules really did require defendants to accept a pro bono military lawyer.
“The concept of compelled representation has always bothered the crap out of me,” Fleener says. “You just don’t force lawyers on people. You don’t represent someone against his will. It’s never, ever, ever done.”
The reason it’s never done is that it undermines the concept of a fair trial. When a man’s life or liberty is at stake, he gets to decide who will speak for him. That’s the way American courts work, have always worked. To eliminate that right is to begin to transform a trial into a pageant. And the other commission regulations—the use of secret evidence and third-hand hearsay, excluding defendants from parts of their own trials, charging them with invented crimes after they’d been interrogated in isolation for years—only further that transformation.
“I hated the fact, still hate the fact, that we were making up a trial system to convict people after we’d already decided they’re guilty,” Fleener says. “I hated that as a country, we were doing that. I didn’t like the fact that we were violating the rule of law, and that what we were doing as a country was just…wrong.”
Fleener hated it enough to return to active duty—speciﬁcally, to represent al Bahlul. Or more accurately, to be the lawyer al Bahlul would try to fire, the proxy through which an alleged terrorist could attempt to preserve the right to choose his own counsel. (“That’s the irony,” Fleener says. “I took a job knowing I’d be trying not to work.”)
So he flew to Guantánamo, where al Bahlul refused to meet him and al
Sharbi refused to meet Kuebler, and then the two lawyers spent a few
days in the sun, talking about the law and the commissions and their
peculiar problem. They became friends and, during the following weeks
and months, legal partners, two officers trying to figure out how to
not represent men they’d volunteered to defend because that—getting
ﬁred—was the right and proper thing to do.
Fleener was still officially al Bahlul’s lawyer when he finally met him on January 11, 2006. Al Bahlul is a Yemeni national with a long beard and a slight build who is reputed to have been a bodyguard and propagandist for Osama bin Laden, and he had a hearing that morning on a charge of conspiracy identical to al Sharbi’s. He spoke with Fleener briefly beforehand, just long enough to tell him he didn’t want his assistance and to explain why. Then he went into the courtroom and sat at the defense table.
Fleener sat behind him and to his right, in a chair just inside the bar rail. The distance was deliberate. If they actually want to force a lawyer on a guy, he told himself, they’re going to have to make it look like they’re forcing a lawyer on a guy.
Al Bahlul spoke through a translator to the presiding officer, explaining for the second time in seventeen months that he wanted to represent himself. How could he possibly trust a U.S. military officer to defend him? He’d been imprisoned by the military for four years already, and he claimed to have been mistreated—tortured, depending on who’s defining the term—during interrogations. Why, for that matter, would he want any American speaking for him? “I regard them as enemies,” he told the presiding officer.
His request was denied, and then the presiding officer, army colonel Peter E. Brownback III, motioned toward Fleener. “Major Fleener,” he said, “please move up to the counsel table.”
Fleener stood. “Sir, is this an order?” he asked. “Should I consider it an order?”
“Do you need an order?”
“I believe I do, sir,” he said.
From one perspective, allowing these two particular alleged
terrorists to represent themselves would eliminate a lot of headaches
for the government: Neither would be difficult to convict because
neither would present an actual defense. Al Sharbi, if allowed, would
become a martyr. “To be honest with you, I did not come here to defend
myself,” he announced at his last hearing. “I came here to tell you
that I did what I did and I’m willing to pay the price no matter how
much you sentence me, even if I spend hundreds of years in jail. In
fact, it’s going to be an honor, a medal of honor to me.” Al Bahlul
would be even less ambitious: He promised to boycott his trial—a point
he made by holding up a sheet of paper with boycott scripted in
Arabic—and let Allah sort it all out later. “You are going to be ruling
in this life, this earth,” he told Brownback, “and God will rule based
Yet who speaks for the defendants matters greatly to the government, because the commission trials are meant, in part, to justify Guantánamo itself.
Which is extremely difficult at this point. The prison camp at Guantánamo has been an international scandal since it opened in early 2002. Hundreds of men, most captured far from any physical battlefield, have been held without charges, without access to courts, and most radically, without the protections of the Geneva Conventions, one of the governing laws of war by which every civilized nation for more than fifty years has agreed to abide. They have also been subjected to interrogation techniques—sleep and sensory deprivation, extreme heat and cold, sexual humiliation, prolonged confinement in painful positions, threats of physical harm—that, if not outright torture, would be criminal if attempted on American soil.
This is why enemy combatants are held at Guantánamo. The base is a legal no-man’s-land, a spit of sand leased from Cuba that is under U.S. control but is not sovereign territory. As such, the Bush administration maintains that neither the Constitution nor the writ of habeas corpus—the centuries-old foundation of Western law that allows a person to contest his detention before a legitimate court—applies to foreign nationals imprisoned there. Guantánamo, then, has—from its inception—been intended not primarily as a place to hold illegal fighters off the battlefield (any old prison could accomplish that) but as a place where men without rights could be interrogated without judicial oversight. “Everything about it, from where it was placed to its day-to-day operations to the rules that were put in place, reveal that its principal purpose was to be the ideal interrogation chamber,” says Joseph Margulies, an attorney with the MacArthur Justice Center at Northwestern University School of Law who has represented detainees and who wrote Guantánamo and the Abuse of Presidential Power. “And what they believed is that in order to extract information, you needed to create an environment of anxiety, of fear, of disorientation, of dread. That’s not the environment that typically prevailed in prior armed conflicts.”
Five years in, there is also ample evidence that many of the
Guantánamo detainees are not, in truth, “the worst of the worst.” While
there are surely some dangerous men there—including Khalid Sheikh
Mohammed, the reputed architect of September 11, who was transferred
there last September from a secret prison overseas—Guantánamo has also
hosted a sizable contingent of Taliban conscripts, low-level jihadis,
and a collection of peasants, farmers, students, and businessmen swept
up by mistake. Only 8 percent were considered Al Qaeda fighters, and 55
percent hadn’t done anything hostile to the United States or its
allies, according to a 2006 analysis of detainee files by researchers
at Seton Hall University School of Law. Only 5 percent were captured by
U.S. forces, whereas 86 percent were either captured by Pakistanis
(including al Sharbi) or grabbed by the Northern Alliance when the
United States was papering Afghanistan with bounty notices. “Get wealth
and power beyond your dreams,” one promised. “You can receive millions
of dollars for helping the Anti-Taliban Force catch Al-Qaida and
Taliban murderers.” With an incentive like that, it is not
inconceivable that the people rounded up would be the easiest prey
instead of the most vicious, especially when a confederation of
warlords is doing the hunting. The relative danger of a detainee could
also be mitigated by his citizenship: Every enemy combatant with a
British passport, for example, has been released at the request of the
United Kingdom, which preferred even its alleged terrorists not be
detained and interrogated indefinitely without charge.
Still, if the administration is going to maintain that the men it has held for years truly are among “the most vicious killers on the face of the earth,” it seems only right that the United States should prove as much. International decorum, to say nothing of the nation’s presumed moral stature, demands at least a token few be tried before a fair tribunal.
That’s where the commissions come in. It’s extremely unlikely that anyone held at Guantánamo could be convicted in federal court (to which the administration says they have no access anyway) or in something closer to a regular court-martial “because of the way we’ve collected evidence and other things,” says Brigadier General Thomas Hemingway, the former legal adviser to the commissions. Even generously assuming no evidence has been obtained through abusive interrogations (which would almost certainly be barred from any criminal court), each defendant has been questioned for years without the benefit of counsel, which in itself would be considered impermissible. And perhaps certain evidence—statements from a Taliban mole, say, or a few bits of data from a laptop an Al Qaeda cell doesn’t know is missing—would compromise national security if it were revealed in an open hearing.
But let’s be realistic. The interrogations, whether abusive or merely aggressive, are the primary problem. And the government anticipated as much: The commission system was established before Guantánamo opened, in preparation for what would happen there.
Which is why the commissions were designed to appear to be fair. The rules required each defendant to be provided a JAG officer who would be bound by personal and professional honor to present as robust a defense as possible. It would all look very proper, but the outcome would be preordained, the defendant utterly doomed, because of all the other rules.
The main problem with the commission system is that it would try men already considered guilty: Every defendant would have been ruled an enemy combatant, first by the mere fact of his detention, then by a separate board, a Combatant Status Review Tribunal—and he would be charged with a crime only an enemy combatant could commit. (“Conspiracy to commit murder by an unprivileged belligerent” is just a clunkier way of calling a man an unlawful enemy combatant.) The charge would only reinforce what had already been decided; the presumption of innocence would be completely reversed.
The trial procedures were no better. Defendants wouldn’t see classified evidence against them, including anything that fell under the broad rubric of “sources and methods”—or, more simply, how statements were gathered and from whom. That obviously could include the benign, such as protecting the identity of an informant, yet it also clearly suggested that evidence derived from torture could be allowed while the actual torturing would be kept secret. If, for example, John Doe had been waterboarded until he claimed that Mike Smith was a terrorist, Mike Smith would know only that “a source” had positively identified him, though not who or under what conditions. The accused also could be removed from his own trial whenever the presiding officer decided national security needed to be protected, and the rules tolerating hearsay testimony were so loose as to be meaningless. Any fifth-hand mumblings could be used against a man, and he would have no effective ability to challenge them.
“In practice the commissions dispense with two indispensable legal protections—the presumption of innocence and the prevention of ex post facto application of criminal laws,” Fleener says. “What we’re saying is, ‘You are guilty of something—we just don’t know exactly what. So we’ll gather as much incriminating evidence as we can, using methods that we aren’t going to talk about, and then we’ll make up a law that criminalizes the conduct.’ ”
For some of the detainees charged in 2006, having a military lawyer was an acceptable arrangement, certainly no worse than their present circumstances of sitting isolated in a cell.
But what if an alleged terrorist didn’t want to play along? What if he didn’t care about making the show as convincing as possible?
Then the show would collapse. It would be exposed for what it is: neither fair nor credible. Which is why al Bahlul and al Sharbi had JAG officers forced upon them.
“Over time,” Kuebler says, “we figured out we’re the linchpin in this process. They want to have these bizarre trials, they don’t want to let the defendant see secret evidence—so the one thing they need is us. The government wanted this attorney-client thing to work. They really did. It’s an important part of the show.”
“Only the government benefits if we do a bang-up job,” Fleener says. “The administration believes the commission process will ultimately justify the detentions. They know they can’t just hold people; they don’t want to take the political heat. So they rigged the rule of law. And because it’s rigged, the only thing that’s in play is the appearance.” And the detainees know it, which is why they don’t want to go along with a charade. “At the end of the day,” he says, “that’s how these guys look at it: ‘If I’m going to get a life sentence—or a death sentence—I’d rather get one in this weird, disgusting system that everyone knows is a weird, disgusting system than have some military lawyer up there dancing and juicing it up and making it look like it’s not rigged.’ ”
Ironically, Kuebler and Fleener want to defend their ostensible clients. They both have this notion that al Sharbi and al Bahlul will come around, that each will eventually realize that an American military officer who’ll fight for his right to reject him will also defend him at trial, even an unfair trial. And they both believe al Sharbi and al Bahlul would be better off with their help, too. Probably still doomed, but not quite as definitively.
But why should either man cooperate? After years in military
custody, there’s no reason to trust a man in uniform, particularly one
with so little power he can be turned away by the guards at the gate.
“What’s this guy supposed to think?” Kuebler says. “ ‘Here’s your
lawyer, but we control him’?” Even if al Sharbi did accept his lawyer,
nothing would change, not in any future near enough for him to glimpse.
He would still be stuck in Guantánamo. He would probably be seen as a
collaborator, an informant squealing to a man in a uniform. And his
objective isn’t to win his freedom—his motives are political. He wants
to demonstrate that America isn’t moral and isn’t just and is perfectly
content to stage mock trials to convict him under laws he doesn’t
recognize. Why should he help? Would an American soldier captured by
the Taliban and charged with crimes against Allah willingly cooperate
with the best Sharia lawyer in all of Afghanistan? No. How is al
Sharbi’s situation, from his perspective, objectively different? It’s
“It would all be different if you had a guy saying, ‘Please help me,’ ” Fleener says. “And that’s really what it comes down to. If a guy wants my help navigating through a rigged trial system, I should help him.”
But he can’t. Al Bahlul hasn’t said help me. He has said I regard you as my enemy.
So in the spring of 2006, Fleener and Kuebler were stuck arguing for the right of two defendants to fire them—which is to say, for the rule of law. (An often unpopular cause. Even Fleener’s own mother wasn’t happy in the beginning. “I tried to explain it to her, and my mom’s comeback was always something regarding 9/11,” he says.) What happens to those two admitted jihadists is, frankly, less important than what happens to the American ideal. “It truly does affect all of us,” Fleener says. “It’s not because al Bahlul wants to dispense with counsel that I’d leave my job and get involved in this mess. It’s that once you start putting on show trials, you can’t go back.”
And he couldn’t just quit, either. “What I didn’t want was for them to give this to some junior officer who would let Colonel Brownback scare him into playing along and not do the right thing here, and I think the right thing was to make sure this guy’s voice was heard,” he says.
He sighs. “For the first time in my life, I felt like I couldn’t do the moral thing”—defend al Bahlul’s rights— “or just walk away.”
Here is the problem with an attorney representing a client who doesn’t want his services: It’s unethical. There are exceptions, of course, such as when a defendant is incompetent or disruptive. But as a general rule, a lawyer can’t impose himself on a man who’d prefer otherwise, and he will be punished if he does. The defendant can sue for malpractice, and the bar can impose sanctions, even take away his license to practice.
An order to represent al Sharbi and al Bahlul, then, would also be
an order for Fleener and Kuebler to violate their professional ethics;
by obeying their superiors, they risked disobeying the rules of
the bar. Even if a foreign detainee’s right to choose counsel was
irrelevant, what about the right of Fleener and Kuebler to avoid
committing professional misconduct? They were U.S. citizens exposed to
potentially serious harm by the commissions. Al Sharbi and al Bahlul
couldn’t argue anything in federal court, “but there’s no way they
could keep the lawyers out of court,” Fleener says. And looking
at it from that angle highlighted the deeper conflict. “Are we soldiers
who have to try to get through this process because we follow orders
and that’s what we do?” he says. “Or are we lawyers who are supposed to
try to make sure the rule of law isn’t destroyed in the process?”
But would they face real harm? Or would the strange and muddy rules of the military commission inoculate them against what would otherwise be obvious ethical violations? That was not clear. The Professional Responsibility Committee of the navy JAG office, not surprisingly, said that Kuebler “is required to zealously represent Mr. Al Sharbi at all proceedings before a military commission,” because that’s what the commission rules required. The army JAG office said that Fleener “may be directed to continue representation” of al Bahlul “even though he can, and perhaps should, move to withdraw…if the client is completely uncooperative” —which, of course, al Bahlul was and Fleener did and the presiding officer denied. And the state bar in Iowa, where Fleener is licensed, came up with the curious notion that his duty as an officer of the court trumped his ethical obligations involving an unwilling client.
To other ethics specialists, however, the answer was obvious. “There are some exceptions way out at the margins,” says John Steele, a law-school lecturer and practicing lawyer in California, where Kuebler is licensed. “But the basic rule is, for a competent individual, you can’t do it.” In an April 2006 affidavit, Steele noted that even employing “an ‘attack the government’s burden of proof’ defense for Mr. al Sharbi” —a bare-bones maneuver that wouldn’t require al Sharbi’s cooperation at all— “would breach fundamental tenets of legal ethics.” Fourteen lawyers and legal scholars in Wyoming, where Fleener is also licensed, agreed in a separate memorandum. And if he were forced to represent al Bahlul, Wyoming rules would require him to follow “the client’s decisions concerning the objectives of representation.” And since al Bahlul’s objective is to not be represented by Fleener…well, it’s a conundrum.
Those state issues aren’t tangential. All JAGs must be licensed in one state or another (there is no military bar), and breaking the rules can have serious consequences. If, for instance, Fleener commits an ethical violation in Guantánamo, it could be a black mark on his license in Wyoming, where he intends to practice when his tour is up at the end of this year. “Would another public defender hire him?” says Debra Patalkis, a lawyer working pro bono for Fleener on the ethics issues. “Would another defendant trust him? Tom would be damaged on many different levels.”
Complicating all this, of course, is the fact that Fleener and Kuebler are military officers, subject to a chain of command and military orders and prohibitions against insubordination. Because the commission rules were so poorly drafted, they were caught between competing loyalties—their superiors and their ethics. “It puts an ethical lawyer in a position of disobeying a military order,” Patalkis says. “This is not a hypothetical injury. This is a real problem: Do you anger the military, or do you anger the whole American system of justice?”
Those two things should never be in conflict to begin with. But given the choice, Fleener and Kuebler chose to risk angering the military. In the late spring of 2006, they were preparing to sue for their right to be fired by jihadis in Guantánamo Bay. Of course, that would have entailed naming their superiors as defendants in a federal lawsuit, most likely the convening authority and perhaps their commander in chief, President Bush. There’s nothing illegal about that, but neither would it enhance either man’s military career. “I really think Tom is on the side of angels and his motivations are pure,” Patalkis says. “But I’m concerned someday he’ll be stationed in Anbar Province writing soldiers’ wills. He laughs. I don’t.”
Fleener and Kuebler never sued, because the U.S. Supreme Court briefly made their ethical conflicts disappear. On June 29, 2006, in Hamdan v. Rumsfeld, the court threw out the military-commission system, ruling that the president can’t unilaterally invent ways of trying people, even foreigners imprisoned outside U.S. territory, without congressional approval.
At the time, it was considered a resounding victory, partly for the detainees (who the court said were covered under Common Article 3 of the Geneva Conventions) but mostly for the rule of law and the separation of powers. In theory, that is true enough. In practice, however, Hamdan has transmogrified into a significant defeat—again partly for the detainees and mostly for the rule of law. The court said the commissions were illegal because Congress hadn’t authorized them—so the White House merely needed Congress to do just that. It began drafting a new military-commissions bill within weeks, and submitted it to the Republican-controlled Congress two months later, just in time for the midterm elections.
On October 17, after largely party-line votes in both the Senate and House, President Bush signed the Military Commissions Act (MCA) of 2006. It was an astonishingly radical law. For one, it gave the president the authority to declare anyone, captured anywhere, an enemy combatant who can be jailed indefinitely and without charge, precisely the sort of power against which the colonists fought the revolution. Two, it explicitly stripped the right of habeas corpus from any foreign national designated an enemy combatant. It also implicitly weakened the Article 3 protections of the Geneva Conventions by allowing the president to define “outrages upon personal dignity, in particular humiliating and degrading treatment,” which the conventions prohibit.
For Kuebler and Fleener, there was one relative bright spot: “The
accused shall be permitted to represent himself, as provided for by
paragraph (3).” It’s in Subchapter IV—Trial Procedure, a simple
sentence in black and white. But still, there were reasons to be
skeptical, to suspect that the provision wasn’t as clear as it seemed:
The “paragraph (3)” it referred to was a list of caveats that allowed
self-representation to be revoked if the defendant didn’t behave to the
presiding officer’s liking. So what would happen if a man’s idea of
representing himself was to boycott his trial? Would a lawyer be forced
on him then?
That wasn’t clear at all.
There’s a little diner in Durham, North Carolina, just off the Duke University campus, where Fleener and Kuebler like to have breakfast when they’re in town, which is every few weeks, because part of the Guantánamo defense team consists of a handful of Duke law students. Kuebler’s eating his usual, a giant biscuit piled with scrambled eggs and bacon, and Fleener is checking headlines on his laptop.
It’s a glorious morning in the spring of 2007, more than five years after the military commissions at Guantánamo were first created and the day after a single detainee, Australian David Hicks, finally pleaded guilty. “This is funny,” Fleener says, without looking up from the screen. “Listen to this: ‘A day after pleading guilty,’ blah blah blah, ‘Hicks was moved to a more comfortable cell.’ ” He shakes his head. “Only in Guantánamo Bay are pretrial conditions worse than after you plead guilty.”
Fleener and Kuebler are still officially assigned to al Bahlul and al Sharbi, but neither has had to do any actual lawyering. The Hamdan decision was a reset button for the commissions, dismissing all the cases that were pending in June 2006, and neither al Sharbi nor al Bahlul has since been recharged. Their status for now is that of mere enemy combatants, squirreled away at Guantánamo, five years and counting, until the end of an endless war.
With no one to defend, without even clients to fire them, Fleener and Kuebler spend a lot of time lecturing and debating. They speak to small groups—law students and legal societies—and at public-interest symposiums, often in tandem, sometimes solo, always criticizing Guantánamo and the commissions, occasionally debating other lawyers and scholars who are more sympathetic to the administration’s policies. The debates can be quite lively. On an intellectual level, it’s intriguing stuff, untangling the threads of international law and military procedure and constitutional reach. “All of that is fascinating,” Fleener says. “But what it does is take everyone away from the facts, which are: We lock up innocent people without access to courts, and we’ve tortured people. And when you’ve got a bunch of government lawyers sitting around trying to game torture, the first thing you’d hope would happen, especially as a lawyer, is that someone would step back and say, ‘Hey, we’re trying to game torture. This isn’t right.’ And no one did that. Not one of them.”
Instead, people who swore to uphold the American ideal, beginning
with the president, deliberately subverted it. They established a
system of detention and interrogation—with the acquiescence of a
compliant Congress and a fearful public—that no American would tolerate
if it were applied to our citizens anywhere else.
“Can you imagine,” Fleener says, “if people came out and did the exact same shit we just did? Except brown people did it?” At that moment, imagining such a thing took no effort at all: Iran was holding fifteen British sailors and marines after seizing them off the coast of Iraq. “Would we get ripshit if Iran does to the Brits what we’ve done to al Sharbi and al Bahlul?”
Kuebler nods. “Yes.”
Fleener goes further. “I think more war crimes have been committed in the detention and interrogation and fake trials of people in Guantánamo than people in Guantánamo have committed,” he says. “And I don’t think the question is whether they’ve tortured people.”
Kuebler considers that for a moment. He’s the more reserved of the two, less animated, the one who Fleener says “brings substance to my outrage.” After a bit, he slowly dips his chin, then raises it. “I think things have been done to people,” he says, “that under any definition except this administration’s very narrow one would be torture.”
The administration’s definition, obviously, is the one in play. The MCA purported to exclude from the commission trials any statements obtained through abusive interrogations, but it really doesn’t. Like the previous version, the commissions are still allowed to protect the sources and methods used to collect evidence, an invitation to launder torture, not exclude it. To use the same example: If a man was waterboarded until he coughed up a name, that can still be sanitized into a sworn statement from an interrogator that a secret source identified a terrorist. The defendant would get to see that, at least—defendants now get to see everything the jury sees—but not the how or the why behind it. Nor would his lawyer, who nonetheless would have the burden of proving that that evidence is unreliable. The only thing to prevent such a scenario is the presiding officer’s discretion.
And so it goes, blacks and whites dissolving into grays. Fleener and Kuebler still aren’t certain they won’t be ordered to represent men who don’t want them. Yes, the MCA says a defendant can represent himself, but it also says the presiding officer can revoke that privilege if he fails “to conform his deportment and the conduct of the defense to the rules of evidence, procedure, and decorum.” If al Bahlul were to say, “I reject your illegitimate court,” then sit down and hold aloft his boycott sign, is that proper decorum? If al Sharbi announces, as he has, “I did what I did,” is that sufficiently close to the rules of evidence and procedure?
No one knows.
If it is not, if the right to self-representation is revoked,
Fleener or Kuebler would be seated at the defense table—because the
commission regulations require a military lawyer be present. Why?
Here’s one possible reason: “It’ll put the judge in a much easier
position to revoke the guy’s right to represent himself,” Fleener says.
“The military lawyer’s already there, and they can make him start
dancing.” Which would bring everything full circle. And then what? Does
representing al Bahlul mean denouncing the court and joining his
boycott? Would that be insubordination? Or must he put on the vigorous
defense al Bahlul doesn’t want? Does he join the show and play his role
in this elaborate production?
No one knows. And maybe no one will ever know, because maybe al Sharbi and al Bahlul will never be charged. Why bother? What’s in it for the government now? Why drag unwilling players to the stage when they can be kept locked up forever, anyway?
It is so much easier to invite more compliant defendants into the courtroom. Late on the afternoon of Friday, March 23, Marine Corps major Dan Mori went to see General Hemingway in his office in Crystal City, Virginia, where they worked out a deal for David Hicks. More than five years earlier, Hicks had been on the first plane into Guantánamo, one of twenty men said to be so dangerous that they had to be chained to the floor so they wouldn’t chew through the hydraulic lines and crash the transport into the sea. He’d also been one of the first men charged—and with the spectacular crimes of attempted murder by an unprivileged belligerent, aiding the enemy, and conspiracy. In February, under the new commissions, prosecutors recommended he be charged with attempted murder in violation of the law of war and providing material support for terrorism. A month later, the attempted murder was dropped; the chief prosecutor had wanted him to do twenty years on the remaining count.
Mori and Hemingway cut a deal for nine months (with no credit for the five-plus years he’d been locked up), most to be served in Hicks’s native Australia, where there was enormous political pressure for his release. In exchange, Hicks had to promise not to speak to the media for a year and to renounce his claims of being beaten, drugged, and anally raped while in American custody. All things considered, not a bad trade for him.
And not a bad deal for the government. It now has a conviction before the military commissions. It can now say the system works.
Except that it doesn’t.
“Mori pleaded his guy out in a naked deal to charges that weren’t a crime, before a trial in an illegal court,” Fleener says the day Hicks’s deal was announced. “And that’s considered a victory.”
He shakes his head. He likes Mori, knows he’s an excellent attorney,
says he would have done the same thing for his client. And he’s not
exaggerating when he calls the commissions illegal, either. In a weird
quirk, the MCA allows only “unlawful enemy combatants” to be
tried before the commissions. Yet everyone in Guantánamo is classified
as an “enemy combatant.” It appears a semantic quibble. But not far
into the future, close enough that Fleener can see it coming, two
commission judges will dismiss charges against other detainees because
of that single missing word, unlawful. Mori could have raised
that point, could have argued the commissions had no authority to try
his client, a mere enemy combatant. But then David Hicks would still be
locked up in Guantánamo, uncharged and untried, serving a sentence
between indefinite and forever.
Instead, he cut a deal and went home. It had nothing to do with fairness or the rule of law or any ideals that were once commonly held so sacred, so inviolable, that Guantánamo would have never existed. It’s the new paradigm. It is what it is.
“It’s to the point with Gitmo that I’m so offended by what we do down there that…” Fleener pauses, searches for the right words. “Well, it’s like, can a system be so bad that everyone involved should just disengage? This is close.”
Sean Flynn is a GQ correspondent.
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