By Jamil Dakwar, Director, ACLU Human Rights Program
This week, while the eyes of the American public and the world focus on the final leg of the presidential race, a new trial commenced at Guantánamo. The trial of Ali Hamza al Bahlul, al Qaeda's alleged media secretary, is only the second full trial to take place at the naval base since the first group of detainees was transferred there from Afghanistan in January 2002.
Al Bahlul is viewed as a particularly colorful defendant by outside observers and members of the press. His previous appearances before the commission provided provocative challenges to a system that is legally and politically tainted. In his challenges to the legitimacy of the military commissions, al Bahlul has built himself a reputation for defiance. He has refused legal representation and has frequently stated his desire to boycott the hearings. In January 2006, he famously raised a hand-made sign in the courtroom that declared a boycott of the hearings. He rarely turns down an opportunity to express his controversial views on America and to reiterate his allegiance to Osama Bin Laden.
On Day One of his hearing yesterday, however, al Bahlul showed marked self-restraint, remaining silent for the six-hour duration. He implemented his boycott strategy by attending the hearing, but refusing to take part in the proceedings. He listened to the remarks of the judge and prosecution without bothering to put on his headset to hear the Arabic translation. More significantly, he instructed his court-appointed military defense lawyer, Major David Frakt, to remain mute. Frakt tried his best to balance his ethical responsibilities as the appointed defense lawyer with his client's wish not to mount a defense. Frakt informed the military judge, Colonel Ronald Gregory, that he intended to respect al Bahlul's request to boycott his own trial. From that point forward, Frakt answered all the judge's questions in the negative and refused to take an active part in the proceedings.
The judge, perhaps realizing that the integrity of the commission lies on his shoulders, responded to Frakt's decision by stating that, in the absence of a defense, he would "intervene to insure a fair trial." He allowed al Bahlul to stay in the courtroom but warned him that he would not be permitted to speak unless he took the stand as a witness. The judge also ruled that he would not allow previous statements made by al Bahlul to be used by the prosecution because they were made in the limited context of explaining al Bahlul's intent to boycott. It became clear, however, that the trial is slowly moving towards its inevitable end: a show trial that might well become another piece of al Qaeda recruiting propaganda — ironically produced at the trial of the alleged al Qaeda propagandist.
The afternoon session was devoted to the selection of the commission's panel, the jury of military officers that will hear the evidence in the case and decide al Bahlul's sentence. Six of the nine military officers selected served on the commission panel that sentenced David Hicks in 2007. Hicks was the Australian prisoner sentenced to a maximum term of seven years in prison for providing material support for terrorism. Hicks' plea agreement suspended all but nine months of the sentence and he is now free in Australia. Was it a coincidence that six out of the 13 members of the panel served in Hicks' controversial case? During yesterday's session, it was clear that the government is not taking any chances; it challenged four members of the panel who had not served in the Hicks commission. For almost seven years, Guantánamo has been the antithesis of justice. These days, the government does not bother even with the appearance of fairness.