Military judge warns 9/11 accused of disadvantages of self-representation

10 July 2008

Three of the five men accused of orchestrating the attacks of 11 September 2001 and facing a death penalty trial by military commission are appearing in front of a military judge in Guantánamo on Thursday. Amnesty International has an observer there, who’s following the proceedings this week.

The two other defendants appeared before the judge, US Marine Colonel Ralph Kohlmann, on Wednesday. He heard the two men's assurances that they were not intimidated into making their decision on self-representation.

He also warned that, if the men chose to represent themselves, their defence would be hindered because they would not be given access to classified documents or any sensitive material the judge considered should be protected in the interest of national security.

A primary issue of the hearings was to tackle the question of whether the decisions by the men at their arraignment on 5 June 2008 to represent themselves were taken voluntarily. The court considered reported indications that one or more of the defendants may have felt coerced by the other defendants into opting for self-representation.

‘Ali ‘Abd al-‘Aziz ‘Ali (‘Ammar al Baluchi), a Pakistani national, and Saudi national Mustafa al Hawsawi were the two defendants who were questioned by the judge on Wednesday. Both men denied having been intimidated by any other of the accused into making their decision on representation.

Mustafa al Hawsawi said that the defendants had talked to each other during the arraignment and "reached some common ground". When asked whether any of the other four accused had done anything that he perceived as an order or a threat, or an instruction as to how to act in the proceedings, Hawsawi responded "without doubt, no" and "absolutely no".

‘Ammar al Baluchi told the military judge that the allegations of intimidation were a misunderstanding as a result of the interpreter not understanding their culture and a joke told by Khalid Sheikh Mohammed at the expense of Mustafa al Hawsawi.

Al Baluchi told the judge that he had chosen freely to represent himself for a number of reasons, including religious and ethical ones, and because "these proceedings – I am not satisfied with them." He said that, "simply", the "justice" of this "top secret trial" was in question.

He acknowledged that he "may be compromised by my lack of experience of law", but added that, due to his "lack of contact with the lawyers, I do not know what they do or will do in my absence. No one could tell me what they are doing in my absence. So I choose to represent myself."

He also related a number of issues of concern that, if left without remedy, Amnesty International considers would represent a substantial violation of his right to be able to conduct his defence. He noted that, despite his decision to represent himself, the authorities had refused to deliver to the judge two letters and a motion he had written. He said he had neither access to a computer nor access to a law library.

He also said that it was difficult to contact and consult with his standby counsel – they could not come to Guantánamo often and they could not email and letters took a long time (if delivered). He said that, while lawyers could send the judge emails and letters and file motions, he could not.

Judge Kohlmann made a finding that al Baluchi had knowingly and voluntarily chosen self-representation, that the defendant wanted his US military lawyers to act as standby counsel, and that his US civilian counsel could act as legal consultants.

Al Hawsawi said that he had not yet made up his mind whether or not he wanted to accept his military or civilian counsel. The judge ordered the military lawyer assigned to the case to remain on it, and the civilian lawyer could serve as a legal adviser, unless and until al Hawsawi indicated to the contrary.

The question of classified information also arose. Amnesty International has previously raised its concern that defendants, even if represented by security-cleared lawyers, may face a possibly insurmountable barrier in relation to testing certain classified evidence used against them. This obstacle might be even greater in the case of defendants representing themselves.

In his session with al Hawsawi, for example, Colonel Kohlmann told the defendant that, if he chose to represent himself, he would not be given access to classified documents prior to trial because he does not have security clearance. He said that he would not be given access to any sensitive materials that the judge considered should be protected in the interest of national security. Lack of access to such material would significantly hinder the defendant’s ability to represent himself, the judge warned.

Amnesty International has said that it considers the 11 September attacks to have been a crime against humanity and has consistently called for justice and security to be pursued within a framework of strict adherence to international law. The organization has said that the US government has systematically failed in this regard.

Amnesty International continues to urge the US government to abandon the military commission trials, and to bring any defendants before the ordinary federal courts, without resort to the death penalty.

Read More:

Guantánamo military commission hearings resume (News, 9 July 2008)

USA: 9/11 defendants warned on lack of access to classified information and other disadvantages of self-representation

Index Number: AMR 51/076/2008
Date Published: 10 July 2008
Categories: USA

Two of the five men accused of orchestrating the attacks of 11 September 2001 appeared separately in front of a military judge yesterday to be questioned about their decision to represent themselves. There were indications that one or more of the defendants may have felt coerced by the other defendants into opting for self-representation.

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