Defendants at Guantanamo Bay are turning their backs on U.S. war crimes trials, creating complications in the long-stalled effort to prosecute suspected terrorists.
Three alleged al-Qaida operatives have now chosen to boycott their upcoming trials and more are expected to do the same as the military attempts to prosecute dozens of Guantanamo prisoners at this isolated, high-security U.S. base overlooking the Caribbean.
Two men, a Saudi and a Yemeni, at pretrial hearings this week denounced the tribunals as a sham and said they would not cooperate with their defense or appear for future hearings.
Defense attorneys say they must uphold the wishes of their clients, and that they could face sanctions from the bar associations in their home states if they don't.
Army Lt. Col. Bryan Broyles, defending an alleged al-Qaida operative, said he might have to be a "potted plant" during the trial.
Based on his client Ahmed al-Darbi's decision Wednesday to boycott, "that should mean ... that I sit very quietly, answer the judge's direct questions and that's it," Broyles told reporters.
Defense lawyers told to carry on
Military judges have told lawyers that they must carry on with their defense even if their clients boycott. But Broyles said he "almost certainly" will file a challenge against the order that he defend his client in any case.
The chief prosecutor, Army Col. Lawrence Morris, said he does not know if the boycotts are organized but vowed to continue with the tribunals, also known as military commissions.
Even so, the boycotts have created an ethical dilemma and could slow trials that had been scheduled to begin in early summer — but are now widely expected to be delayed again. They may also create starkly one-sided proceedings.
"Without a credible defense effort, any convictions will simply fail to stand up to scrutiny in the court of world public opinion," said David Glazier, a professor Loyola Law School in Los Angeles who has analyzed the U.S. military commission system.
So far, 15 detainees at Guantanamo have been charged. Of the five who have appeared before a judge, three have opted not to participate.
Some detainees have been "subjected to torture and/or other very harsh ... interrogation," chief defense counsel Army Col. Steve David said Saturday, adding that this might affect their ability to make competent decisions on whether to boycott the trials.
The boycotts stand to affect America's perception of the commissions, he said.
"I believe the public is already gravely concerned about the process. So it would appear that this issue may further deteriorate what little faith is left," David wrote in an e-mail to The Associated Press.
Jamil Dakwar, a lawyer for the American Civil Liberties Union who observed this week's pretrial hearings, said more boycotts are likely. Zachary Katznelson, an attorney for the British human rights group Reprieve, predicted that 90 percent of detainees would choose not to participate.
80 prosecutions planned
The military has said it plans to prosecute about 80 prisoners at Guantanamo, where some 275 men suspected of having ties to al-Qaida or the Taliban are being held.
"This strategy is not entirely unreasonable given their distrust of the system and the level of isolation and lack of due process," Dakwar said during a break in the proceedings.
The legal adviser to the commissions, Air Force Brig. Gen. Thomas Hartmann, shrugs off the boycotts, saying the Military Commissions Act of 2006 allows detainees to "voluntarily absent" themselves.
"An accused choosing not to participate in the proceedings is certainly not preferred, but neither is it contrary to the MCA," Hartmann said Friday.
The commissions are "extraordinarily fair," he added, insisting they are comparable to traditional military and civilian courts.
But detainees don't see it that way, said Katznelson, who visited Guantanamo clients this week. The commissions allow coerced and classified evidence, and even those who are acquitted can still be held at Guantanamo.
"Prisoners here have absolutely no faith in the military commission system," he said. "If they had an opportunity for a fair and open trial, they would take it."
Broyles said al-Darbi made a "reasoned" decision before announcing he would take no part in the tribunals, charging that they lack legitimacy. The 33-year-old Saudi faces up to life in prison if convicted of plotting to attack civilians and providing material support to terrorism as an alleged al-Qaida operative.