In any credible court system, the eve-of-election
conviction of an associate of Osama bin Laden for producing promotional material
for al-Qaeda, which directly encouraged impressionable young men to join a
violent jihad against the United States, would be a resounding victory for
the Bush administration. It would stand, however belatedly, as a last-minute
acknowledgment that the administration, whose conduct in the "War on Terror"
has been widely criticized for its almost indiscriminate extralegal brutality,
was at least capable of trying, sentencing, and imprisoning one important al-Qaeda
insider for war crimes before handing over the reins of power to a new administration.
But this is Guantánamo, and the court system is anything but credible.
After four hours' deliberation on Friday, the military jury in the trial of
Ali Hamza al-Bahlul announced yesterday that it had convicted the 39-year-old
Yemeni on 17 counts of conspiracy, eight counts of solicitation to commit murder,
and 10 counts of providing material support for terrorism, and the judge, Air
Force Col. Ronald Gregory, gave him a life sentence. However, when the trial
began last Monday, I explained
that, no matter what happened in the days that followed, the trial's legitimacy
six months ago, when al-Bahlul refused to take part in what he regarded as
Under the rules laid down in the Military Commissions Act, which revived
the trial system – conceived by Vice President Dick
Cheney and his closest adviser, David Addington – after the Supreme Court
ruled it illegal in June 2006, prisoners were allowed to represent themselves
in the trials. This amendment arose because of ethical problems faced by defense
attorneys who were required to represent unwilling clients, because, in the
real world outside Guantánamo, compelled representation can lead to
the lawyer being punished. As an
article in GQ explained last summer, "The defendant can sue
for malpractice, and the bar can impose sanctions, even take away his license
The right to self-representation has already led to some bizarre incidents
that have done nothing to improve the administration's credibility (as, for
example, when Khalid
Sheikh Mohammed had the opportunity to mock his judge in pre-trial hearings
in September), but, more importantly, what no one foresaw – because the MCA
was a hideously rushed piece of flawed legislation – was what would happen
when prisoners decided to boycott the proceedings entirely.
As was revealed last Monday, in the event of a boycott, the judge would attempt
to compel the prisoner's military defense attorney to represent him, but as
this raised the same ethical problems that had plagued the lawyers in the commissions'
first incarnation, al-Bahlul's lawyer, Maj. David Frakt, responded by refusing
to cooperate. "I will be joining Mr. al-Bahlul's boycott of the proceedings,"
he said, "standing mute at the table." Before the trial, he explained
that he had obtained an ethics opinion from the New Jersey Bar Association,
which stated that he was obliged to follow his client's instructions and was
not allowed to cross-examine witnesses or offer any kind of legal argument.
As a result, the trial proceeded like a perfect facsimile of a show trial,
with no mention of the torture that al-Bahlul had apparently suffered in U.S.
custody. As the Miami
Herald reported, suspicions that al-Bahlul had been tortured had led
two prosecutors to resign from the commissions' first incarnation rather than
pursue the case, and in 2004 al-Bahlul's first military defense lawyer, Maj.
Tom Fleener, had explicitly told
Col. Peter Brownback, the judge at the time, "I believe Mr. al-Bahlul
was tortured," adding that it was "going to be an issue" in
any trial faced by his client.
Without any of these inconvenient distractions, the prosecution was free to
show the film that al-Bahlul had reportedly made, and to present testimony
from FBI special agent Ali Soufan, who declared
that, in interrogations, al-Bahlul had told him that he "considered it
one of the best propaganda videos al-Qaeda has to date," and that Osama
bin Laden was "so impressed" with it that he promoted al-Bahlul to
become his media secretary.
The prosecution also introduced testimony by videolink from three members
of a group of young men from Lackawanna, N.Y. – the so-called "Lackawanna
Six" – who had been encouraged to travel to an Afghan training camp before
the 9/11 attacks, to "cleanse their sins and clear a straight path to
heaven by training for jihad," and had been shown the video. Sentenced
in 2003, at the height of "War on Terror" paranoia, to jail sentences
of between eight and 10 years for providing "material support for terrorism,"
the men shed more light on their own failure to embrace terrorism than anything
One of the three, Yassein Taher, said that the camp's recruits "wept
and shouted praise when they saw the video," but added that he was shocked,
surprised, and afraid to discover that the camp was actively recruiting suicide
bombers, and had "a martyrdom sign-up sheet." Another of the men,
Sahim Alwan, said that he was shown the video at guesthouses in Pakistan and
Afghanistan and was "horrified." "I realized myself that I was
in way over my head," he explained, adding, "I wanted to get out
of there." Taher and Alwan then stated that they "feigned family
emergencies and fled the camp," and Reuters
added that the third man, Yahya Goba, "completed the training but refused
to pledge loyalty to bin Laden."
What is particularly distressing about al-Bahlul's trial is not the question
of his involvement in al-Qaeda. This is something he has never denied, and
as Reuters also reported, during the showing of the film, he "sat at the
defense table beaming with pride at some segments and nodding in agreement
at bin Laden's words," and he also "pounded his fist on the table
once at the mention of the defilement of Muslim women." In addition, Ali
Soufan testified that al-Bahlul had told him, "Everything I believe is
in that tape," and Soufan and a Navy investigator, Robert McFadden, testified
that al-Bahlul had "told them American civilians were legitimate targets
since they 'are paying taxes and supporting the war against Muslims.'"
Without a case for the defense, however, the administration has been allowed
to sidestep the question of al-Bahlul's treatment in U.S. custody, and has
also been allowed to ignore Maj. Frakt's assertion, made before the trial began,
that al-Bahlul "was not an operational combatant," "had no role
in planning terrorist activities," and "did not engage in terrorist
activities." The administration will crow that it has achieved a significant
victory in the "War on Terror," but al-Bahlul's guilt should have
been determined in a federal courtroom, where he would not have been able to
score a propaganda victory for al-Qaeda by being convicted in a one-sided trial.
Breaking his silence before the sentence was announced, al-Bahlul made just
this point by telling
Col. Gregory, "Go ahead with your trial and I will continue with my boycott.
You do whatever you want. You have orders from the politicians, and I will
not accept it."