Armed Conflict Courts & Litigation Criminal Justice & the Rule of Law Terrorism & Extremism

Nashiri Motions Hearing #2: Conflicted Counsel Non-Resolution

Benjamin Wittes, Lawfare Staff
Wednesday, April 11, 2012, 12:51 PM

Military Judge Col. James L. Pohl opens the hearing at around 9:10 am announcing that Brig. General Mark Martins, the chief prosecutor for military commissions, has joined the prosecution table.

Published by The Lawfare Institute
in Cooperation With

Military Judge Col. James L. Pohl opens the hearing at around 9:10 am announcing that Brig. General Mark Martins, the chief prosecutor for military commissions, has joined the prosecution table. Judge Pohl then announces that he will take up first AE 059, the government’s motion “to Review [Michel] Paradis’s Representation of the Accused in this Case.” Trial Counsel Anthony Mattivi, arguing for the government, says that the government's motion asks the commission to look into the future and to consider the status of proceedings if the case reaches the point where there are two people in the courtroom, with adverse interests, each of them looking to same person for legal advice. One is the accused in this case. The other, Mattivi says, is Mr. Al-Bahlul, whose appeal Paradis is also handling. Mattivi says that the law acknowledges a difference between an actual and a potential conflict of interest. There are no bright lines, he says, and the issue requires a fact-specific inquiry. The government is not here arguing this motion because it wants to be; it’s not trying to get Paradis disqualified. Its goal, rather, is to bring the possibility of a conflict to the court’s attention. It is asking for a thorough, fact-specific inquiry, and to determine where this conflict falls on the spectrum of problems. Judge Pohl asks whether the court needs a waiver of any conflict from both defendants. Mattivi says he it does. Judge Pohl says that this issue came up at arraignment. At that time, he discussed with Nashiri whether he wanted to keep Paradis as a lawyer. Was that sufficient as a waiver by Nashiri? It was not, says Mattivi. What was lacking? What was lacking, Mattivi says, is that Judge Pohl did not have the benefit of a comprehensive briefing. There has to be a more thorough look. Courts of appeal have shown a willingness to scrutinize waivers after the fact in the context of ineffective assistance of counsel claims. The best way to protect the record is to have Nashiri advised by independent counsel, in other words counsel not associated with defense counsel for someone else. Mattivi says he has no intent to impugn the defense team; he is just acknowledging the realities of litigation. Mattivi thus asks for the appointment of an indepedent lawyer to advise Nashiri of the benefits and problems associated with having Paradis as counsel. Judge Pohl asks whether the same process would have to take place with Bahlul (who refuses to engage with any counsel). Mattivi says it would. And if we get through the waiver issue, Judge Pohl says, the next step is to address whether there is a conflict there? Right, Mattivi responds. Judge Pohl asks whether the conflict arises if Bahlul ends up as a witness in this case, and Mattivi says it does. Does the prosecution envision calling Bahlul as a witness? Understanding that things can change, Judge Pohl notes, in Bahlul’s trial, he did not indicate any desire to cooperate with his own defense and told his lawyer to present no evidence. It seems that he has no enthusiasm to participate in his defense. Why would he be a witness for the government to help the prosecution of Nashiri? Mattivi agrees that it seems weird. But Mattivi’s job is to gather all the relevant, material evidence and to present it at trial. It would be irresponsible to take off the table the ability to present evidence if the situation changes. The world watched recently as Judge Pohl took a plea from Majid Khan, who had previously refused to cooperate. People have changes of heart, he notes. Judge Pohl asks whether if Mattivi wishes to approach Bahlul, he has to go through his lawyers. He does, Mattivi responds. That’s one of the questions he has for the commission. Justice demands that in deciding whether to cooperate, Bahlul has the advice of unconflicted counsel. When the government reaches out to Bahlul through counsel, is he wearing the Bahlul hat or the Nashiri hat? Again, Mattivi says he means no disrespect to Paradis. But he’s on the horns of dilemma here, and the prosecution brings that to the commission’s attention, not to impugn anyone, but to protect integrity of proceedings. Richard Kammen, Nashiri’s lead civilian counsel, rises to respond. Just so we are clear, he says, the court knows and the record should reflect that Bahlul did not take part in his own defense. He told his lawyer to put on no evidence and not to participate, because the commissions process is a sham, and Bahlul did not want to dignify it. Paradis represents Bahlul on appeal, before the D.C. Circuit. There are others representing Bahlul in conjunction with that appeal, and that is a significant factor. The government has shown no new facts; it has not found a smoking gun; it just wants to revisit the issue. But when you analyze how this will play out, it becomes much harder than the government wants the commission to believe. The government asks the commission to order the chief defense counsel to appoint a lawyer to examine the situation and then to talk to Nashiri, he says. And the chief defense counsel certainly has the responsibility, the obligation, to ensure conflict-free representation. But his office has vetted this situation prior to Mr. Paradis’s being assigned. He re-vetted it when the government raised the issue before arraignment. And he re-vetted it again prior to this motion and found no conflict. So when the government asks him to appoint a new lawyer, this raises a new issue: Someone other than the chief defense counsel would have to appoint the lawyer, because the chief defense counsel has already found no conflict here. The government has not contacted Bahlul, Kammen says. As the defense explained in its brief, the chief defense counsel can be approached and has a procedure in place whereby he can appoint someone to do this. There’ s no impediment to the government's reaching out to Bahlul. So there’s a defense team helping Bahlul on appeal, and if the government wants to contact him in this case, there will be another lawyer to help with that, Judge Pohl asks? Right, Kammen says. If the government wants to approach Bahlul and wants someone other than Paradis to meet with Bahlul, the defense team would accommodate that. Judge Pohl notes that Bahlul is actually charged as a co-conspirator in this case. Kammen responds that that doesn’t create conflict. And the defense can show that to Judge Pohl in camera if necessary. But in situations of dual representations, Judge Pohl asks, don’t you need a waiver from both defendants? Yes, Kammen acknoweldges. Is there any evidence before the court that Bahlul has waived any potential conflict? Not yet. Isn’t the method to follow to see if both defendants--including Bahlul--will waive? No, Kammen says. Do you mean, Judge Pohl asks, that if Bahlul says he won’t waive, then the case just continues regardless of what he wants? In this case, yes, Kammen says, at least according to facts the defense can describe in camera. You don’t think there is a need for a waiver from Bahlul? Kammen says he can see why the government would want one, but he doesn’t think one is technically needed on the facts and circumstances of this case, subject to an in camera presentation. The commission is being asked to do an extraordinary thing, he says, because we haven’t fleshed out the mechanics of this situation. The lawyer who will become the special master for this conflict will at minimum have to develop relationships with both accused men. And the record indicates that Bahlul is a handful. Now a strange lawyer shows up. What if Bahlul says he won’t see him? Judge Pohl asks whether Bahlul wants any lawyer at this point? He saw what Bahlul did at trial, and when it came up at in the D.C. Circuit, he read the D.C. Circuit’s opinion. He never saw any indication that Bahlul wanted to be represented by Paradis. The opinion concerned the right to counsel under the statute. But if Bahlul says he doesn’t want any lawyer, doesn’t the issue go away? Kammen says he thinks so, but he suspects the government would disagree. Judge Pohl then returns to his starting premise: He needs the views of both accused men. Nashiri’s are known. It’s easy to find out Bahlul’s views too. Do we know them yet? Kammen acknowledges that we don’t. Is it worth calling Bahlul? Kammen responds that based on what we’ve seen, Bahlul is not a predictable personality. He may not want to come to court. And the government says this wouldn’t resolve the issue anyway, because the government cannot predict what will happen in the future and the waiver may thus not be good enough. The government thus wants an independent lawyer for Bahlul--who would have to build a relationship, learn the facts of Bahlul’s case, and so forth. The same would apply to Nashiri. And that review really intrudes into the attorney-client relationship. Judge Pohl says to put Nashiri to the side. Focus on Bahlul. The cases seem to say that when you have this sort of problem. . . . Kammen breaks in and insists that it’s a possible problem, not a real one. Under the facts as we know them, he says, it is far more complicated than the government suggests. Right, Judge Pohl says. You’ve offered in camera stuff which is a factual predicate to show absence of any conflict--or at least, Kammen says, that makes the possibility of one so remote that it’s not worth getting into. Kammen says he doesn’t represent Bahlul, but if, he says, there is a question about his competence, or about whether he is not making a decision in good faith but simply to obstruct the proceedings, that would change things. Does he not have that right, Pohl asks? Kammen says he does not, if there is no conflict. Bahlul has no right to question the representation of the lawyer who has been provided to him, Judge Pohl pushes? On known facts, Kammen insists, there is no conflict. Judge Pohl has one more question: If we go to a situation where Paradis stays on the case, and a conflict arises later, what happens a year or some from now when the possible conflict becomes actual conflict? Kammen responds that Nashiri has waived. The government is interested in protecting the vitality of a conviction and sentence. Well, Nashiri has waived his rights, and the commission has found that waiver to be knowing and intelligent. The defense, he says, has researched the matter and found no cases, in the absence of prejudice, where there has been a knowing and intelligent waiver yet the conviction has been set aside. But prejudice only comes up when a real conflict arises, Judge Pohl responds. What then? Kammen says that Paradis is not Nashiri’s only lawyer, and he is not the one necessarily making strategy calls. The person doing the cross examination of Bahlul could be walled off from Paradis, so he would have no role. If there is no improper transmission of information to the cross-examiner, the government’s concern should be addressed. After conferring briefly with Paradis, who has passed him a note, Kammen adds that if an issue arises, that would then be the time to get a waiver from both clients. That’s the time to act, not now in some far-fetched way in the future. And if Bahlul then says he will not give a waiver, then Paradis would presumably be off the case or walled off in some way. What if the government wants to talk to Bahlul now, Pohl asks? The government is free to contact the office of the chief defense counsel and arrange for contact with Bahlul and, the chief defense counsel will appoint a person to advise Bahlul if that happens. But then a new lawyer has to establish a relationship with him? That happens under any circumstances, Kammen responds. The government can’t have it both ways, he says. It can’t say that Paradis can’t do it so Judge Pohl should appoint a new lawyer but then object to using one of his other lawyers on grounds that someone else would have to establish a new relationship. And what if Bahlul doesn’t want any lawyer? Then the issue is resolved, Kammen says. And what procedures do you propose for figuring out if Bahlul wants a lawyer, Judge Pohl asks? Kammen says he wants to consult with Paradis, because Kammen doesn’t know Bahlul. He says he cannot express how thoroughly this issue has been vetted. The government says that it doesn’t want to second-guess the defense, but it really does. It’s not just Paradis saying that there’s no conflict; Commander Stephen Reyes has looked at it; Kammen himself has looked into it; and the chief defense counsel has looked at it. But, Judge Pohl, notes, he has not looked at it. Kammen responds that he’s happy to show the judge the information. He is prepared to present evidence on the absence of the conflict in camera and ex parte. The defense has not submitted this material in writing but he’s prepared to present it. He sits down. Mattivi declares that Judge Pohl just saw the conflict in action. Kammen, he said, representing Nashiri, had to talk to Paradis about Bahlul. Doesn’t that illustrate the issues we’re dealing with here, he asks? Mattivi says he is always nervous when defense counsel tells you what the prosecution wants. And the prosecution doesn’t want any disqualification or to have it both ways--just to protect the integrity of the proceedings. A waiver doesn’t necessarily solve the problem. It’s just the first step. What happens later, with the ineffective assistance of counsel claims that will arise? There has to be a waiver, but then you get to next step, and then the question is whether that waiver is good enough. But if Bahlul says that he does not want Paradis to represent him, why wouldn’t that resolve any conflicts in Nashiri’s case, Judge Pohl asks? Mattivi says that theoretically, it could resolve the matter. But Bahlul would still have the right to have protected any confidences he shared with Paradis. It seems, he says, that Kammen is saying that sorting this out is just too hard, so let’s not do it. The government, he says, supports an ex parte, in camera presentation to look at the facts. There has to be a record to protect this issue on appeal. Judge Pohl then tries to rule. He says he will take up the defense on its offer to submit an ex parte submission. It seems, he says, that there may be a factual predicate for the absence of a conflict, and he wants to hear that. Once he has, he will consider it. This presentation will be made on the record with a court reporter present either in Guantanamo or in Washington. After that, Judge Pohl will issue his ruling or order. He doesn’t think that this process should prevent his hearing from Paradis on other issues in the meantime. Mattivi concurs with this process. Kammen, however, does not. If the conflict warrants removal, he says, it warrants removal, and Kammen doesn’t see how Judge Pohl can fix it. Paradis is supposed to argue motions today. If he has conflict that warrants removal, that can taint the rest of the defense team. This is huge issue that needs resolution, he says. Judge Pohl says he doesn’t understand the defense’s position. Kammen has said there is no conflict. The defense’s position is that there is no conflict and, therefore, no issue can arise down the road. But if we get down road and Judge Pohl takes the ex parte presentation and then finds that there is a conflict, that this taints the whole defense team? The court, he says, can’t resolve this issue today if Kammen wants to give Judge Pohl more facts. We could, Kammen says, do the ex parte presentation today and tomorrow, though Kammen says he understands the great inconvenience that would create. Mattivi here points out that the motions to be argued today by Paradis are ones in which Bahlul and Nashiri are identically situated, so there are no adverse interests, and there are no potential conflicts as to those motions. Judge Pohl asks whether the government will accept the risk of proceeding on other motions now, while leaving the conflict issue to be resolved later. Yes, Mattivi says, because there is no risk with respect to these facial challenges. Kammen objects again, but Judge Pohl isn’t buying it. The government made the motion, he says. The defense opposes it and has taken the position that there is no conflict based on the facts. Judge Pohl doesn’t see it getting resolved today without that factual predicate. The government wants to continue with other motions today, and there are no problem with those. Since the defense’s position is that there’s no merit to the conflict issue, he determines that the rest of the hearing should proceed.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

Subscribe to Lawfare