Guest Post: David J. R. Frakt on the Al-Bahlul Amicus Brief

[David J. R. Frakt, Lt. Col., USAFR, is a legal scholar and former lead counsel, Office of Military Commissions-Defense.]

I write in response to the amicus brief submitted by “former government officials, military lawyers, and scholars of national security law” including my good friends Peter Margulies, Eric Jensen and several other esteemed and highly accomplished colleagues, discussed in Kevin Jon Heller’s excellent post.

In my mind, reasonable people can differ on whether conspiracy is a recognized crime under the international law of war, and whether the conviction violates the Ex Post Facto clause (parts I and II of the brief), although I tend to agree with the posts (here and here) by Kevin Jon Heller and by Steve Vladeck at Lawfare. These issues are thoroughly covered in other briefs, so I will not address them here.  I write to address part III of the brief, titled:  “The Error In the Initial Conspiracy Charge Was Harmless Because Al Bahlul Had Fair Notice Of The Charges Against Him And An Adequate Opportunity To Prepare A Defense.”

The brief makes an important factual error.  The brief states at pp. 16-17 that Mr. Al Bahlul made “statements in trial in his capacity as his own defense counsel.”  It repeats the assertion that he was “Acting as his own counsel” or “Acting as his own defense counsel” multiple times, quoting from the transcript from a pretrial session on 24 September 2008.  Allow me to set the record straight.  I was Mr. al Bahlul’s defense counsel.  He did not represent himself at trial, and the assertion that he was acting as his own defense counsel at the 24 September 2008 hearing  is also inaccurate.

I was detailed as Mr. al Bahlul’s military defense counsel. (Tr. 4., AE012). At Mr. Al Bahlul’s arraignment on May 7, 2008, I requested that the trial judge, Col. Peter Brownback (USA), advise Mr. Al Bahlul of his right to represent himself. (Tr. 17).  Col. Brownback did so, and asked repeatedly if Mr. Al Bahlul wished to represent himself. (Tr. 17-19, 35, 37, 39). After extended discussion, Col. Brownback determined that Mr. Al Bahlul did desire to represent himself, granted the request and appointed me to serve as standby defense counsel. (Tr. 42).

Mr. Al Bahlul thus became the first military commission accused to be afforded the right of self-representation under the 2006 MCA.  However, this grant of his pro se request was to be very short-lived.  The day after the arraignment, May 8, 2008, the judge held an RMC 802 conference at my request. I wanted to clarify how the government was going to facilitate Mr. Al Bahlul’s self-representation.  For example, how were they going to provide discovery to him?  What facilities and resources would he be provided in order to prepare his defense?  I also sought to clarify my role as standby counsel.  The government was directed to file a brief by May 29 setting forth their plans and views. (See, AE023, Summary of R.M.C. 802 Conference Held on 5/8/2008). Shortly thereafter, COL Brownback was involuntarily re-retired from the U.S. Army (he had been recalled from retirement for several years – his request for an extension was denied shortly after the Al Bahlul arraignment).  A new military judge, Col Ronald Gregory (USAF), was detailed on May 21, 2008. (See, AE 024). The government then sought an extension Col. Brownback’s order, which was granted on May 29, 2008. (See, AE026).

The government never actually made any effort to provide discovery to Mr. Al Bahlul or to provide him with any resources or facilities to enable him to represent himself, although they did ultimately submit a plan to do so.  However, at the same time they submitted the plan, they filed a motion P-002 seeking that the military judge reopen the issue of self-representation and engage in a more extended colloquy with Mr. Al Bahlul on the issue to determine if his waiver of his right to counsel was knowing, intelligent and voluntary. (See, AE051).  In essence, the government argued that Col. Brownback’s ruling granting the right to self-representation should be reconsidered because he had conducted an inadequate inquiry with Mr. Al Bahlul.  In my response as standby counsel, I complained that the government did not serve the motion on the accused directly and allow him to respond: “The government and the military commission are intentionally depriving the accused of his right to represent himself by failing to allow the accused to exercise the right previously granted to him and by forcing standby defense counsel to respond on the accused’s behalf without the benefit of the accused’s views.” (Response to P-002, AE051)  I informed the court that Mr. Al Bahlul had refused to meet with me and thus was unaware that the court was considering reopening the issue of Mr. Al Bahlul’s pro se status.

Over my objections, Col. Gregory agreed with the government and announced his intention to take up the issue with Mr. Al Bahlul at the next hearing.  At that hearing, on August 15, 2008,  Mr. Al Bahlul became upset at the judge and prosecution and indicated his desire to leave the hearing. Col. Gregory informed Mr. al Bahlul that if he left the hearing it would be inconsistent with self-representation and might negatively impact his pro se right.  Mr. Al Bahlul then voluntarily absented himself.  Although Col. Gregory never actually discussed the pro se issue as he planned to do, in light of Mr. Al Bahlul’s voluntary departure, he rescinded his pro se status and directed me to serve as defense counsel. (Tr. 79-86).  No argument on Motion P-002 was held.

The next pretrial session in the case was held on September 24, 2008. At the outset, I informed the court that although I was “detailed defense counsel and court-appointed defense counsel, Mr. Al Bahlul has not authorized me to speak on his behalf or to represent him, other than on these procedural issues before the court.” (Tr. 95).  Despite this limitation, I did represent Mr. Al Bahlul at this session.  It is true that Mr. Al Bahlul did make some spontaneous comments regarding the charges at this hearing, but it is not true that Mr. Al Bahlul was “acting as his own counsel.”  Indeed just minutes after the comments quoted in the amicus brief from page 193-4 of the pretrial hearing transcript, I requested “to withdraw or be excused from representing Mr. Bahlul.” (Tr. 197). The judge’s response: “since he is not representing himself, you are the detailed counsel and I will not allow you to withdraw and will not release you.” (Tr. 197).

The pretrial session continued on October 27, 2008.  At that point, I reiterated Mr. al Bahlul’s request to proceed pro se. (Tr. 211-212).  The request was denied.  Col Gregory stated that the pro se  request was untimely and directed that “Major Frakt, as detailed counsel, will continue to represent Mr. Bahlul.” (Tr. 213).  “Major Frakt is your detailed defense counsel, and will speak for the defense.” (Tr. 214). In protest of this decision, I announced that “I will be joining Mr. Bahlul’s boycott of the proceedings sitting silently at the table.” (Tr. 213).  Unable to represent himself and unwilling to be represented by a U.S. military officer, someone whom he considered to be an enemy, Mr. Al Bahlul mounted no defense.  (He did offer a few remarks in the pre-sentencing portion of the trial after he had already been convicted.)

Regarding the specific comments made by Mr. Al Bahlul which the amicus brief asserts were made by him “acting as his own counsel,” Col. Gregory characterized these remarks as “limited purpose testimony” and refused to admit them at trial. (Tr. 216).

In my post-trial clemency submission, I raised only one issue (the only issue Mr. Al Bahlul ever authorized me to argue on his behalf): the improper denial of his right to pro se representation, which, I argued effectively denied him any representation at all, and therefore violated due process. For reasons, unknown to me, Mr. Al Bahlul’s appointed defense counsel did not raise this issue on appeal.  I continue to believe that the denial of his right to pro se representation was a clear violation of due process and is an independent basis to reverse his conviction.

The amicus brief asserts that Mr. Al Bahlul had “fair notice of the charges against him and an adequate opportunity to prepare a defense.”  Although it is true that Mr. Al Bahlul was informed of the charges against him, the claim that he had an “adequate opportunity to prepare a defense” does not comport with reality.