"I did not come here to defend myself": responding to war on terror detainees' attempts to dismiss counsel and boycott the trial.

• Author: Bloom, Matthew

INTRODUCTION I. DETAINEES' PROCEDURAL DEMANDS AND THE GOVERNMENT'S RESPONSE A. Pre-Hamdan Procedures for the Military Commissions B. Pre-Hamdan Demands for Self-Representation and/or Boycott C. Pre-Hamdan Responses to the Detainees' Procedural Requests D. Self-Representation and Boycotts in the Military Commissions Act II. ANALYZING GOVERNMENT RESPONSES TO THE DETAINEES' PROCEDURAL REQUESTS A. Interests Implicated by the Detainees' Requests B. Evaluating Responses to Self-Representation 1. Standards from U.S. Military and Civilian Criminal Law 2. Standards from International Law and Tribunals 3. Third-Party Interests and Self-Representation C. Evaluating Responses to Boycott Requests D. Evaluating Responses to Requests To Dismiss Counsel and Boycott Simultaneously III. TOWARD A NORMATIVE SOLUTION FOR DETAINEES' PROCEDURAL REQUESTS A. Requests To Dismiss Counsel and Boycott Simultaneously B. Requests for Self-Representation with Classified Evidence C. Examining the Standby Counsel Solution D. Amicus Curiae Counsel as a Superior Solution CONCLUSION INTRODUCTION

In the weeks and months following the September 11, 2001, terrorist attacks, (1) the Bush Administration began to develop plans to bring suspected terrorists to justice. (2) With the President's Military Order of November 13, 2001 ("Military Order"), the executive branch announced that it would administer trials by military commission of non-U.S, citizens who were reasonably believed to have "engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor" or "knowingly harbored [such] individuals." (3) Based on the Military Order, the Secretary of Defense would prescribe the procedures for the trials by commission. (4) In January 2002, the United States began to transfer suspected terrorists to a detention facility set up by the Department of Defense at the naval base at Guantanamo Bay, Cuba. (5) On March 21, 2002, Defense Secretary Donald Rumsfeld promulgated the original commission trial procedures. (6) Only ten detainees out of more than 700 were charged under the original regulations (7) before the military commission proceedings were suspended following the U.S. Supreme Court's June 2006 decision in Hamdan v. Rumsfeld. (8) So far, three of the ten detainees who were originally charged have been recharged (9) under new Department of Defense rules (10) promulgated in accordance with the post-Hamdan Military Commissions Act of 2006 ("MCA"). (11)

A striking trend has emerged among the ten detainees who have been charged in the military commissions: at least five of them announced their intentions to represent themselves or to boycott their own trials. (12) Three attempted to do both simultaneously, thereby attempting to waive any defense whatsoever. The detainees are making these procedural requests much more frequently than is common among defendants in civilian criminal proceedings in the United States. (13)

While scholars, commentators, politicians, and the general public have debated the legality and fairness of the military commissions since the President issued the Military Order, (14) the public discourse has not considered how the United States should respond to detainees who seek to represent themselves or boycott their trials, (15) Rules precluding defendants from accessing independent civilian courts, (16) the prolonged detentions of individuals without charges, (17) allegations of prisoner abuse at the Guantanamo facility, (18) and rules for withholding classified evidence from the detainees (19) have been more prominently debated.

These concerns are extremely important, but the questions of self-representation and boycott are also crucial. There is strong historical support for granting detainees the rights to self-representation and boycott. Throughout the entire history of English criminal jurisprudence, the Star Chamber was the only criminal tribunal that imposed counsel upon an unwilling defendant. (20) American jurisprudence from colonial times to the present has recognized the right to self-representation. (21) The right is overwhelmingly available in contemporary international legal bodies and instruments as well. (22) International and domestic legal rules and precedent also support the right to boycott. (23)

The established protections for these procedural rights stem from public policy concerns for the defendant's individual autonomy. As the U.S. Supreme Court has stated, the right to self-representation "affirm[s] the dignity and autonomy of the accused." (24) Because it is the defendant--not the attorney--who "suffers the consequences if the defense fails," (25) the Court has reasoned that the defendant must be permitted to control his own defense. Thus, self-representation "embodies one of the most cherished ideals of civilization: the right of an individual to determine his own destiny." (26) Similarly, the right of the defendant to be voluntarily absent from his trial also can be justified under an autonomy rationale: the defendant has a right to absent himself from his trial because he is the person most affected by its outcome and should be able to choose to boycott. (27)

The primary argument against granting these rights is based on the effect that they can have on the fairness of proceedings. In the context of self-representation, several judges and scholars have argued that the scenario in which a nonlawyer defendant defends a case against a seasoned prosecutor undermines the court's ability to achieve due process. (28) Similar concerns related to due process, based on perceived benefits of having the accused present when his life and liberty are in jeopardy, form the main argument against granting voluntary waiver of presence. (29)

These concerns are particularly acute in the military commission context. Since September 11, 2001, the U.S. government has faced a need to develop rules for military commissions that allow the nation to protect its security while adhering to rule-of-law norms. The Guantanamo military commissions have been controversial and subject to significant legal challenges since their inception. (30) Currently, many are calling for Guantanamo's closure. (31) As even critics of the Bush Administration's detention policies acknowledge, though, some of the detainees are too dangerous to release, and the evidence against them is too sensitive to be presented in a U.S. civilian court. (32) Therefore, the United States will almost certainly try a significant number of its war on terror detainees in ad hoc military tribunals at Guantanamo or on U.S. soil. (33) The United States has been a leader in developing rule-of-law standards worldwide. (34) Because the fairness of these proceedings is a matter of international political concern,3s the world will closely watch how the United States handles detainee requests to represent themselves, to boycott their trials, or to do both simultaneously.

As the United States wrestles with whether and how to reform procedures for trying war on terror detainees, this Note examines whether a defendant in a military tribunal should be able to dismiss his counsel and/or boycott his trial. (Because detainees have often attempted these maneuvers in tandem, they are intertwined at Guantanamo and are best examined side-by-side.) In Part I, I describe the pretrial procedural requests that charged detainees have made, the government's response before Hamdan was announced, and the government's post-Hamdan response (embodied largely in the MCA). In Part II, I analyze how well policy makers and adjudicators have responded to the detainees' requests by balancing the defendant's individual autonomy rights against third-party interests in the overall legitimacy of the military commission system, its capacity to reach just outcomes, and national security. I fault the government responses for flouting international and domestic legal rules and precedent. That said, I recognize two complications that allowing these autonomy rights would present: no one would be present to represent a defendant's interests if he went forward with the trial (and did not enter into a plea bargain) (36) but then boycotted the proceedings and dismissed his lawyer simultaneously; and if a defendant elected self-representation, he would not be able to review classified evidence (including potentially exculpatory evidence) in his case. In other words, granting the detainees' procedural requests would in certain situations make portions of the proceedings entirely nonadversarial, which would compromise the ability of the already maligned military commission system to reach just outcomes. Part III proposes a solution that balances the detainees' autonomy rights and the third-party interests in adversarial process. In situations where granting a detainee's procedural request would sacrifice adversarial process, the tribunal should not force counsel on an unwilling detainee, but should appoint amicus curiae counsel to test evidence from the defense's perspective on behalf of the tribunal.

1. DETAINEES' PROCEDURAL DEMANDS AND THE GOVERNMENT'S RESPONSE

   Some detainees were charged with crimes as early as February 2004, but no detainees were put on trial prior to the June 2006 Hamdan decision and the MCA's subsequent rewriting of military commission rules. (37) The military commission system was riddled with confusion, including problems with defense team staffing and translation services; (38) procedural delays; (39) and challenges in U.S. federal courts between 2004 and 2006. (40) The commissions did hold pretrial hearings during this time. (41) In malting their first public appearances at the pretrial hearings, many of the charged detainees sought to represent themselves and/or announced their intention to boycott their trials. (42) Thereafter the government had to respond to these requests, which it did in the MCA. So far, three detainees have been...