Frustration, Boycotts, and the Arkansas Ethics Rules (Or, Just Another Day in the Life @ Camp Justice)
From American University Washington College of Law Prof. Stephen Vladeck, who observed the latest military commission hearing for NIMJ:
What follows is my first-hand report on today’s proceedings here at Guantánamo in the military commission trial of Omar Khadr, a Canadian citizen captured in Afghanistan in the summer of 2002 at the age of 15, and charged with, among other things, throwing the grenade that killed Sergeant Christopher Speer. I came down here as observer for the National Institute of Military Justice—an NGO affiliated with my law school that was founded in 1991 to promote the fair administration of justice in the military system, and to educate the public, press, and Congress about the military justice system. Although I am here through NIMJ’s good graces, it should go without saying that what follows are my own views, and do not necessarily represent the position of NIMJ, its leadership, or its employees.
I had never been to Guantánamo before yesterday. Notwithstanding my involvement at various stages in the Hamdan litigation and in various other cases involving non-citizens detained here, I had somehow managed to avoid this remote stretch of southeastern Cuba in my travels—for better or for worse. Now, after observing almost a full day’s worth of proceedings in Omar Khadr’s case (the big news from today’s events has already been broken elsewhere), I think it’s easy to see why everyone is so frustrated—the lawyers on both sides, the judge, the defendant, even the JTF personnel whose thankless job it is to deal with the dozens of people (like me) who converge upon the base from afar for each new round of hearings. Frustration comes cheap here at Camp Justice; progress is the priceless commodity.
Frustration is also at the heart of the current predicament in Khadr’s case. Although Khadr had largely been cooperating with his lawyers, that changed recently, for reasons that we can only speculate about (I won’t here). Thus, Khadr fired his civilian lawyers, and made representations to the court that he also wanted to rid himself of his detailed military lawyer, Lt. Col. Jon Jackson. The court initially took that as a motion to proceed pro se, and, ostensibly, that was the matter pending before the court when it convened this morning.
It quickly became apparent, though, that self-representation was but means to an end for Khadr—that his own frustration with the entire process had boiled over, and that he no longer wanted to participate (or have anyone actively participate on his behalf) in the commission. After reading a prepared statement (available here), and reiterating time and again that he believes the outcome of the trial is foreordained no matter what happens now or what arguments are made, Khadr got into a lengthy colloquy with the judge, Army Colonel Patrick Parrish, about his intentions. Parrish, who initially seemed inclined to allow Khadr to represent himself, only slowly came to realize that self-representation wasn’t Khadr’s real endgame, and that, if he allowed Khadr to represent himself, there would in fact be no defense. Suffice it to say, though, that it took the better part of separate 46-minute and 25-minute hearings this morning before this all became apparent, and I think there were at least two distinct points in the interim when Judge Parrish was prepared to rule to the contrary and allow Khadr to represent himself.
Of course, the Constitution does confer a qualified right upon defendants to represent themselves, but (1) that assumes that Khadr has Sixth Amendment rights, hardly a settled proposition; and (2) the right is not absolute, and can be abridged, inter alia, in cases in which the defendant is mentally impaired from raising an effective defense.
Anyway, the question then became how the defense wished to proceed with its (still-) pending motion to suppress the various statements Khadr made to his interrogators, both here and after he was initially detained at Bagram. And that’s what precipitated the second recess, to allow Lt. Col. Jackson to confer with Khadr and figure out whether the defense would (1) withdraw the motion; (2) take no action (which would presumably mean the motion would be decided based purely on the existing record and any further argument by the government); or (3) call witnesses and present evidence in support of the motion. Related, there’s also the timing question. With the trial still scheduled for the week of August 9, and with no witnesses here to testify in conjunction with the suppression motion, each of these options carried consequences for what at times today seemed to the most frustrating problem of all—the calendar!
When things reconvened after lunch, Judge Parrish asked Khadr which of those options he wished to pursue, and Khadr, again, said he was “boycotting.” Perhaps it’s just me, but once Parrish decided that Jackson was still going to be Khadr’s lawyer, it seems that such a strategic question should have instead been directed to Jackson. Little matter, though, because Parrish immediately turned to Khadr’s military lawyer, who now finds himself in an awful bind. On the one hand, his client clearly wants him to do nothing at all (and doesn’t even like the idea that he is still Khadr’s lawyer). On the other hand, his ethical obligations as a lawyer may well compel him to act against his client’s wishes at least to some extent so long as he reasonably believes it to be in his client’s best interests. Different Guantánamo lawyers have handled this problem differently, and, in any event, state ethics rules may well vary. And if that weren’t enough, there’s Rule 109(b)(3)(A) of the hot-off-the-presses 2010 Manual for Military Commissions [I know, how’d I miss that one?], which provides that “In effecting a choice of law between the professional responsibility rules of a counsel’s licensing jurisdiction and the rules, regulations, and instructions applicable to trials by military commission, the latter shall be considered paramount, unless such consideration is expressly forbidden by the rules of a counsel’s licensing jurisdiction.”
It’s not as if these kinds of issues don’t arise in civilian courts; of course they do. Judges are faced all the time with recalcitrant defendants who want to represent themselves, or with lawyers who feel caught between their obligations to their client and to their bar. The difference, so far as I can tell, is that the civilian system has tradition and precedent, from which stability—if not legitimacy—naturally flows. Here, in contrast, there’s no law on virtually any subject, and so there are just too many independent variables, only so many of which can be controlled by the text of the Military Commissions Act or the Rules for Military Commissions.
So, Lt. Col. Jackson did what any reasonable lawyer in his situation would do: he punted, asking the court for time to consult with (and obtain an opinion from) professional responsibility experts in both the Army Judge Advocate General Corps and in the Arkansas bar. Not for the first time today (but perhaps the most vociferously), the prosecution objected to any further delay, suggesting that Khadr is manipulating the process, mocking the commission, and seeking only to further postpone the proceedings, never mind that Khadr himself said four or five times today that he wants the trial to be over as quickly as possible. Nonetheless, Judge Parrish decided to give Jackson until August 2 to hear back from the JAG and the Arkansas bar, and to leave untouched, for the moment, the trial date for the week of August 9, leaving aside the sheer impossibility of either resolving the ethical issue or, even assuming that goes quickly, disposing of the (fairly critical) suppression motion. [There are no available dates for all of the necessary parties to convene again here between now and August 9.]
And so, court finally adjourns for the day (week? month?) around 2:30 p.m., with the distinct sense that a whole lot of effort was expended by a number of people who mean really well, and nothing at all was accomplished.
Just another day in the life at Camp Justice.