Terrorism Trials: Military Commissions

Bahlul's Counsel Reponds

By Benjamin Wittes
Friday, November 18, 2011, 11:53 AM

Several days ago, the government moved in the D.C. Circuit to challenge the counsel–and thus end the appeal–of Ali Hamza Ahmad Suliman Al Bahlul, whose military commission conviction and life sentence is currently on appeal in that court. The court ordered counsel, Michel Paradis, to response and gave him until yesterday to do so.

Paradis has now responded, and reading between the lines, I think the days of his representation of Al Bahlul may be numbered.

The government, recall, argued that "the United States has strong reason to believe that petitioner Ali Hamza Ahmad Suliman al Bahlul has rejected efforts by his appointed appellate counsel, Mr. Michel Paradis, to represent him on appeal and has, in fact, instructed Mr. Paradis not to prosecute an appeal on his behalf." And offered non-trivial evidence to that effect. Paradis's response does not seem to dispute that evidence. Rather, it argues that it is inadequate to interfere in a conceded attorney-client relationship.

Paradis' brief opens as follows:

This Court should reject the government’s proposed inquest into Mr. Bahlul’s relationship with his counsel. Congress set up an appeals process for military commissions that is modeled on the Uniform Code of Military Justice. 10 U.S.C. §§ 801, et seq. Under that process, a criminal defendant has a right of appeal to both the Court of Military Commission Review (“CMCR”) and to this Court. 10 U.S.C. §§ 950f, 950g. A defendant can forfeit his appellate rights by executing a waiver within ten days after the Convening Authority’s action, or withdrawing his appeal anytime thereafter. 10 U.S.C. § 950c(b) & (c). Congress has prescribed rules to ensure that military commission defendants’ relinquishment of their appellate rights is knowing, intelligent and voluntary, and the Secretary of Defense has specified procedures that further reinforce this requirement. There is no provision for an appeal to be deemed withdrawn by implication.

There is no evidence in the record that Mr. Bahlul waived his rights of appeal. By the government’s own admission Mr. Bahlul knows how to terminate his appeal if he so chooses and has declined every opportunity to do so.

Rather than evidence that Mr. Bahlul does not wish his appeal to be pursued, all that the Government has offered this Court are statements he has made to challenge the authority of his military commission and express dissatisfaction with the entire process. Far from being grounds to terminate the appeal, or question it going forward, his objections echo the very grounds on which he now appeals.

Absent a far clearer showing that the process Congress put in place has broken down, this Court should deny the government’s motion so that this case may proceed without further delay.