Government Challenges Bahlul's Counsel

By Benjamin Wittes
Tuesday, November 8, 2011, 7:22 AM

Here's an interesting military commission development. The government has moved to disqualify counsel--and thus end the appeal--of Ali Hamza Ahmad Suliman Al Bahlul, whose military commission conviction and life sentence is currently on appeal to the D.C. Circuit. The file is actually to big to upload with all of its exhibits (it's more than 200 pages), so the motion itself will have to do. The submission raises doubt as to whether All Bahlul's lawyer, Michel Paradis, actually has his client's authorization to the pursue the appeal or whether he is doing it against Al Bahlul's will. The opening reads:

Under settled law, an attorney may not take the procedural step of noticing an appeal unless the client authorizes it. See Roe v. Flores-Ortega, 528 U.S. 470, 479-80 (2000). While respectful of the presumption that an attorney filing a petition does so with the permission of his client, 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. The government did not set out to police or investigate this matter; nevertheless, as explained below, the evidence in the two declarations attached to this Motion rebuts any presumption that Mr. Paradis has been authorized to pursue an appeal in this Court on al Bahlul’s behalf, and therefore Mr. Paradis must demonstrate affirmatively that al Bahlul has authorized him to do so. Although it is in the government’s interest to address and resolve the issues relating to military commissions presented by this appeal, this appeal cannot proceed absent resolution of the fundamental jurisdictional question whether al Bahlul has authorized Mr. Paradis to pursue an appeal on his behalf. The government therefore seeks an order from this Court requiring Mr. Paradis to establish that he has authority from al Bahlul to pursue this appeal. If Mr. Paradis cannot provide proof of such authority from the petitioner, then this appeal should be dismissed.

The motion argues that Al Bahlul at trial consistently rejected the aid of counsel and refused to engage with the commission in any manner that would confer legitimacy on it. And it argues specifically that he has refused to meet with Paradis and, the one time he did, refused him permission to pursue an appeal:

3. The record at trial, as well as subsequent actions taken by al Bahlul as set forth in the attached declarations and detailed below, raise a substantial question whether al Bahlul has authorized Mr. Paradis to represent him before this Court and to pursue an appeal on his behalf. More specifically, according to Captain Don Martin, USN, who was the Staff Judge Advocate (chief legal advisor) to the Commander, Joint Task Force Guantanamo Bay, Cuba, during the relevant time period, Mr. Paradis traveled to U.S. Naval Station, Guantanamo, every few months between December 2008 and May 2011 seeking to meet with al Bahlul. See Declaration of Capt. Don A. Martin ¶¶ 1-2, 5 (Attachment B to this Motion). On every occasion save one, al Bahlul refused to even see Mr. Paradis. Id. ¶ 5 On that one occasion, which occurred on April 7, 2010, when Mr. Paradis arrived at Guantanamo and requested to meet with al Bahlul, al Bahlul asked that Captain Martin come to the interview room where he was meeting with Mr. Paradis. When Captain Martin and his assistant arrived, al Bahlul was in the interview room with Mr. Paradis and a translator. (The translator’s services were not necessary because al Bahlul speaks very good English.) Al Bahlul informed Captain Martin that he (al Bahlul) wanted Captain Martin to be present as a witness as he informed Mr. Paradis that he did not authorize Mr. Paradis to do anything on his behalf. Id. ¶¶ 6-8. Al Bahlul further explained that, by acting on his behalf in pursuing an appeal, Mr. Paradis would afford the military commission system credibility that he (al Bahlul) did not want it to possess. Id. ¶ 8. In response, Mr. Paradis explained that an appeal before the CMCR was automatic and that he had already filed briefs and presented oral argument before that court. Id. ¶ 9. Nonetheless, al Bahlul repeatedly informed Mr. Paradis that he did not want him to “do anything” on his behalf. Id. ¶ 10 (emphasis added). After 45 minutes to an hour, Captain Martin and his assistant departed the meeting, leaving Mr. Paradis and the translator alone with al Bahlul. Captain Martin believes that the two continued to meet for several hours. Id. ¶ 11. The following day, April 8, 2010, Mr. Paradis again asked to meet with al Bahlul, but al Bahlul rejected the request. Mr. Paradis then made several further attempts on different occasions to meet with al Bahlul, but Mr. Paradis was rebuffed on every occasion. Id. ¶ 12. 4. To comply with procedural rules governing military commissions, a U.S. Army major assigned to Joint Task Force Guantanamo, acting on behalf of the commission, attempted to serve a copy of the CMCR decision on al Bahlul on October 11, 2011. Al Bahlul refused to accept service of the decision. See Affidavit of an Unnamed U.S. Army Major Assigned as an Assistant Staff Judge Advocate for Military Commissions Support, Joint Task Force Guantanamo Bay, Cuba (Attachment C to this Motion). Thereafter, al Bahlul asked to speak privately with the Major, and al Bahlul then told the Major, in English, “I won’t do anything.” Id. ¶ 7. Al Bahlul added that he objected to the “enemy” court system and wanted “nothing to do with any lawyers ‘until 2050,’ or even later.” Id. ¶ 8. The Major then asked al Bahlul to permit him to advise al Bahlul of his appellate rights, but al Bahlul refused. Id.

The D.C. Circuit has given Paradis until November 17 to respond.