FCDJ Volume V

FORMING AND MAINTAINING PRODUCTIVE CLIENT RELATIONS WITH AL QAEDA MEMBERS AND THEIR SUPPORTERS

1 TRAVIS J. OWENS

1 This article is written in partial fulfillment of the requirements for the California Western School of Law L.L.M. in Trial Advocacy. My thanks to Professor Justin Brooks for his contributions to my writing process and to a host of attorneys and interpreters who provided their practical insights on the substance of this article. The author is a graduate of the University of Cincinnati College of Law (J.D.) and the Naval Postgraduate School (M.A. in Security Studies: Middle East, North Africa and South Asia.). He is a Commander in the Navy Judge Advocate General’s Corps. The views expressed in this article are those of the author and do not necessarily represent those of the Department of Defense or the . 50

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I. INTRODUCTION

As a Federal Defender, you have just been assigned to the case of Ahmed

Warsame, a Somalian general detained for two months on a ship by the United States, questioned by intelligence services, and now indicted in federal district court. The indictment alleges, among other things, that Mr. Warsame materially supported “Al

Qaeda in the Arabian Peninsula.” As a defense attorney, you have represented a multitude of difficult clients - sexual predators, drug dealers with diagnosed mental disorders, and foreign nationals who speak no English and have never been in an

American jail. You are respected for how you can win in court and for having brought clients to the table for deals that people thought could never be made. Is this case any different from past ones? How should you prepare for your first meeting with Mr.

Warsame?

This article addresses how to approach clients involved in terrorism cases, specifically where the accused is a foreign national Muslim Arab with ties to Al Qaeda, or an “Al Qaeda supporter,” as I will call them. The major purposes of the article are to give defense attorneys an increased chance of forming and maintaining, through trial and appeal, a productive attorney-client relationship with an Al Qaeda supporter (a task that is not always possible in these cases) and to avoid the client’s decision to proceed pro se or to boycott the proceedings.

In this article I lay out seven major problems that present acute difficulties in Al

Qaeda supporter cases. I have attempted to avoid problems common to all defense cases though the experienced practitioner will find that some of the problems I discuss below occur in non-Al Qaeda cases as well. It is, however, the conglomeration of several of

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FCDJ Volume V these problems in each Al Qaeda supporter’s case that can make these cases particularly difficult to work.

The experience drawn upon for developing this article comes primarily, but not exclusively, from attorneys who have represented detainees at Guantanano Bay, , or

“GTMO” as it is more commonly called by those of us who have worked there. These attorneys consist of habeas lawyers, civilian defense attorneys and military Judge

Advocate Generals (JAGs).2 GTMO cases are beset with a host of unique problems the average defense attorney will never face, e.g., long-term detention without access to lawyers and officially-sanctioned abuse.3 Despite this, the practitioners consulted for this article agree that there are practice pointers that can be extracted from GTMO attorney- client relationships and applied to those in the federal defense arena. Federal defenders involved in defense of a multitude of terrorism cases were also consulted for this article.

The relations I discuss herein are those between defense attorneys and foreign national Muslim Arabs from the Middle East, South Asia and North Africa, particularly those with ties to Al Qaeda or groups espousing similar ideologies. I do this not because foreign Muslim Arabs are terrorists; the vast majority are not. I focus on this group because, first, it is an area in which I have experience and can apply a critical eye to the advice dispensed by the practitioners consulted for this article. Second, virtually every, if

2 One of the sources for this article preferred to remain anonymous. Because of the nature of the source’s experience, it was difficult to reveal certain other names of sources in the article without it becoming apparent to some readers who the anonymous source was. Thus, a number of quotes provided by other sources I also left anonymous. However, all interviews are on file with the author. I did not use any anonymous sources for contentious assertions. If a reader is interested in more detail about particular sources for this article, he/she is welcome to contact me through military channels. 3 See, e.g., Bob Woodward. Guantanamo Detainee Was Tortured, Says Official Overseeing Military Trials, (January 14, 2009), available at http://www.washingtonpost.com/wp- dyn/content/article/2009/01/13/AR2009011303372.html; Ben Macintyre George W. Bush: Waterboarding Saved London from Attacks, (November 8, 2010), available at http://www.thetimes.co.uk/tto/public/article2800028.ece on November 15, 2011. 52

FCDJ Volume V not every, GTMO detainee is a foreign Muslim Arab, and it is largely lessons drawn from

GTMO that I wish to develop for their application in federal practice.4 Purely for simplicity, I use the term “Middle East” even when discussing South Asia and North

Africa.

II. LITERATURE REVIEW

Much has been written about the complex legal issues involved in representing Al

Qaeda and its associates.5 Only a few authors have touched on the actual issues involved in the defense attorney’s representation of detainees.6 These authors usually address the difficulties involved in representation focusing particularly on systemic challenges rather than challenges presented by the peculiarities of Al Qaeda supporters themselves.7

One article has admirably offered a “Proposed Framework for Representing

Detainees in the War on Terrorism.”8 The article, however, is addressed to military attorneys beginning work on military commissions at GTMO.9 As is explained below, the issues military lawyers face at GTMO are highly instructive for federal defense attorneys but cases appearing in federal court differ in important respects. As Lieutenant

Colonel Bryan Broyles, a retired Army JAG and Deputy Chief Defense Counsel for

4 There have been some detainees such as (Australia), (England) and (Canada) from Western countries. Technically, they are “foreign” to the United States but as English-speaking “Westerners,” they are not the subject of this article. In any case the government has released all detainees of the Western ilk except for Omar Khadr who is set to be repatriated to Canada sometime in 2012 pursuant to a plea deal. See Khadr to Return to Canada: Lawyer, CBC NEWS (October 25, 2010), available at http://www.cbc.ca/news/world/story/2010/10/25/omar-khadr-trial-resumes.html. , Khadr Plea Deal Reveals a 'Get Out of Guantanamo' Strategy, THE (October 26, 2010), available at http://www.mcclatchydc.com/2010/10/26/102585/with-khadrs-plea-deal-obama-administration.html (discussing Khadr and Hicks plea deals). 5 A “Google Scholar” search for “Al Qaeda Legal” returns 25,900 results. 6 See, e.g., Matthew Ivey, Challenges Presented to Military Lawyers Representing Detainees in the War on Terrorism, 66 N.Y.U. Ann. Surv. Am. L. 211 (2010). 7 See, e.g., David Luban, Lawfare and Legal Ethics in Guantanamo, 60 Stan. L. Rev. 1981 (2008); David J. R. Frakt , The Difficulty of Defending Detainees, 48 Washburn L.J., 391, 381-406 (2009). 8 Ivey at 243-48. 9 Ivey, supra note 6. 53

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Military Commissions explains, “having been detained for years, the [GTMO] detainees are pretty sophisticated about their use of the attorneys.”10 After years of fits and starts in military commissions, proceedings they see as only designed to imprison them indefinitely, the detainees sometimes pursue secondary political and philosophical goals using their attorneys, rather than worrying a great deal about their legal predicament.11 In the federal court system, however, defendants like Mr. Warsame may arrive having been recently captured, and may not have been previously represented by American defense lawyers.12 Thus, the framework for forming relations with GTMO detainees, while instructive, is different from the relations I describe below.

Some authors, usually in books, have described how they related with individual detainees and some detainees have even described their relations with their defense attorneys.13 This anecdotal approach is far from complete, but instructive, so I have considered their observations in formulating the advice in this article. Because, however,

I found no articles directly addressing how defense attorneys can approach representation of Al Qaeda members and their supporters in federal court, I focus this article on that question.

10 Interview with Lt. Col. Bryan Broyles (2012). 11 Because no good rule is without exceptions, Al Qaeda members in federal terrorism trials also pursue “secondary” goals. For example, in the case of the so-called “20th hijacker,” “prosecutors produced evidence that Mr. Moussaoui had offered to testify for them against himself if they would have agreed to see that he spent his time before execution in a more comfortable jail cell.” Neil Lewis, Defense Tries to Undo Damage Moussaui Did, THE WASHINGTON POST (March 29, 2006), available at http://www.nytimes.com/2006/03/29/national/29moussaoui.html. Of course, many Al Qaeda prisoner’s secondary goals will relate to larger political strategy, not mere creature comforts. 12 See, e.g., United States v. Bin Laden, 132 F. Supp. 2d 168, 172-182 (S.D.N.Y. 2001) (describing overseas arrests, questioning and extradition/rendition to the United States of foreign Al Qaeda members). 13 See, e.g., MOAZZAM BEGG, : MY IMPRISONMENT AT GUANTANAMO, , AND KANDAHAR (Pocket Books ed., The Free Press 2006) (2007). 54

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III. COMMONLY CONFRONTED PROBLEMS (AND POTENTIAL SOLUTIONS) IN THE FORMATION AND MAINTENANCE OF ATTORNEY-CLIENT RELATIONSHIPS WITH AL-QAEDA SUPPORTERS

Trust, of course, is the key to any successful attorney-client relationship.

Generally, this is built by the confidentiality inherent in the attorney-client relationship and by an American client’s understanding of the role of defense lawyers. Trust, of course, becomes tougher to build as the defendant and the defense attorney’s life experiences depart.

A. Problem 1: Government-Appointed Defense Counsel

1. My Enemy, My Lawyer

To begin, unlike defendants from common law countries or with direct experience in the American legal system, Al Qaeda supporters who hail from places like lawless

Somalia or war-torn generally do not understand the role of U.S. defense lawyers. Usually hailing from authoritarian countries where an Executive drives government decision-making and seeing Al Qaeda as being engaged in a war with the

United States government, they certainly do not understand the concept that defense attorneys can be independent from the same U.S. government that appointed their representation.

Of course, at GTMO, the problem was obvious where uniformed lawyers from the

U.S. military found themselves trying to explain their independence to someone that U.S. soldiers had often been trying to kill only months earlier.14 Perhaps surprisingly, though, the problem was not limited to military attorneys. The civilian habeas attorneys had a

14 See, e.g., Michael Paterniti, The Boy from GTMO, GENTLEMEN’S QUARTERLY (February 2011), available at http://www.gq.com/news-politics/newsmakers/201102/boy-from-guantanamo (discussing venomous “enemy” tit-for-tat comments from detainee to his appointed lawyer and vice versa). 55

FCDJ Volume V similar experience: the detainees assumed they were “government agents.” One habeas attorney, who has represented multiple defendants at GTMO, says that he often wondered how his client would react if he told him/her, “I work for the CIA. I think the detainee would have been shocked but not surprised.”15

As a detainee put it to , who also represented multiple

GTMO detainees, “maybe you’re not with the CIA. Maybe you don’t even know that you’re being used by them. They let you in here, they listen in to what we discuss and bingo, they learn how to manipulate me.”16 It is hard to argue with this logic, particularly when American civil liberties organizations and defense attorneys have publicly expressed the same concerns.17 Whatever the truth, this abject distrust will perpetually lurk under the surface of the defense attorney’s relationship with his Al Qaeda-supporter client. The client will perceive the defense attorney as an “enemy” of Al Qaeda.

2. Shedding the Enemy Label Takes Time

To address the defense-as-enemy problem, the defense attorney can and should explain the appointment process, the independence of defense counsel, etc., as one would do in many non-terrorism cases. Unfortunately, there is little one can do in these cases to immediately deal with the defense-as-enemy problem. It is only through patience, fighting for the client and observing the guidance provided below that the defense attorney can hope to shed the enemy label.

15 Anonymous, see supra note 2 for explanation. 16 CLIVE STAFFORD SMITH, EIGHT O’CLOCK FERRY TO THE WINDWARD SIDE: SEEKING JUSTICE IN GUANTANAMO BAY 192 (Nation Books ed., Weidenfeld and Nicolson 2007) (2007). 17 See, e.g., CCR and Guantánamo Habeas Attorneys Believe Government Is Illegally Spying on Them Without a Warrant, CENTER FOR CONSTITUTIONAL RIGHTS, available at http://ccrjustice.org/newsroom/press-releases/ccr-and-guantánamo-habeas-attorneys-believe-government- illegally-spying-them; see also NAT’L ASS’N OF CRIM. DEF. LAWYERS ETHICS ADVISORY COMM., OPINION 03-04 (2003) (opining that “it is unethical for a criminal defense lawyer to represent a person accused before these military commissions because the conditions imposed upon defense counsel before these commissions make it impossible for counsel to provide adequate or ethical representation.”) 56

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B. Problem 2: Nothing in Common

1. Client and Defense Attorney Differences

Having things in common with the accused always helps build rapport. In the case of foreign-national, Muslim, Arab Al Qaeda supporters, their life experiences are far detached from their defense attorney’s. This may seem obvious because the person is foreign, Arab, and Muslim, but sometimes the width of experience chasm is wider than even the wide-eyed realize. An Al Qaeda member and supporter is usually Wahhabist, perhaps the most conservative sect of Islamic adherents. He has made or attempted to make war on a jihad18 battlefront in Afghanistan, , Bosnia, Somalia, Iraq or elsewhere. He has often married into the Al Qaeda circle and is thus, to understate the matter, highly suspicious of any inquiries related to his family. He speaks little to no

English and has an almost brainwashed, stereotyped mentality about the motives of

Westerners.

Take the case of Omar Khadr, (in)famously known as the “child soldier” at

GTMO. Even though he was born in Canada, his life experience is far removed from that of his defense attorneys. Omar’s father was a “trusted senior member of Al Qaeda” who took Omar, at age 4, to and, at age 10, to Afghanistan to work with Al Qaeda.19

Omar developed extreme religious views and attended terrorist training camps.

Ultimately, U.S. Special Forces captured him after a firefight in which he killed a United

18 I use the term “jihad” here as Al Qaeda uses it, i.e., to mean violent armed conflict. For a better understanding of Al Qaeda’s use of the term see Sayyid Qutb, Milestones 27 (2006), a seminal text on Al Qaeda’s religio-political philosophy. In mainstream Islam, “jihad” often refers to a non-violent spiritual “struggle” akin to the Christian struggle described in the Bible. Ephesians 6:12 (New International Edition) (“our struggle is . . . against the spiritual forces of evil in the heavenly realms.”) 19 See Stipulation of Facts at para. 13-19, Khadr Plea Agreement of October 13, 2010, available at http://media.mcclatchydc.com/smedia/2010/10/27/17/khadrplea.source.prod_affiliate.91.pdf. 57

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States soldier.20 Suffice to say Omar would have little to nothing in common with a defense attorney raised in the United States, particularly a military defense attorney. Go one step further, however, and imagine having Omar as a client if he had continued down this path into his twenties or thirties as Mr. Warsame did.

An Al Qaeda supporter then may have so many suspicions built into his psyche that the chasm of distrust may be too great to cross. Can one build a sufficient level of trust, however, to assist the client through trial? As one practitioner put it, even after working with his GTMO client for years, “[m]y client told me that ‘I trust you, but I don’t trust you 100%.”21 Significantly, in the case of Omar Khadr, a military defense attorney was able to form a bond sufficient to allow him to convince Omar to enter into a plea agreement that should allow his release both from GTMO in the next few months and from a Canadian prison only a few years from now.22

2. Something in Common: No One Wants to be Mistreated

Of course one cannot create commonalities, but if one can get a conversation started with the client, one can begin to learn about the clients interests. Usually, Al

Qaeda-supporter clients are interested in world politics. Israeli-Palestinian politics tend to be a fertile area of conversation. Of course, jumping into political discussions can be a minefield, so this may not be the best jumping off point.

Instead, the defense attorney will have to cast about for topics of discussion. The best place to start will probably be the client’s physical treatment, certainly not the crimes and charges he faces. As one practitioner who has represented multiple GTMO

20 Id. at para. 20-45. 21 Anonymous, see supra note 2 for explanation. 22 Personal conversations with counsel for Omar Khadr; see supra note 4; see also Omar Khadr Gets An Education Behind Bars, CBS NEWS (March 8, 2011), available at http://www.cbc.ca/news/canada/story/2011/03/08/omar-khadr-schooling.html (describing client relations). 58

FCDJ Volume V defendants put it, “[t]he strategy we developed in dealing with the GTMO detainees was that we made a conscious decision not to talk about what they had done, but we would focus on what the detainees had been through. How are you physically? How are you being treated?”23

To understand what the client has been through, the defense attorney would be well-served, before the initial meeting, to gather as much information as possible about the client, particularly which government agencies had custody of him. In the case of Mr.

Warsame, a defense attorney would hopefully learn that he had been in the custody of intelligence services while on a ship prior to coming to the United States.24 One would hope to learn quickly, although this may be impossible, what agencies had custody of Mr.

Warsame (i.e., the Department of Defense, the Defense Intelligence Agency, the CIA, the

FBI, et al.). According to press reports, these agencies now participate in High Value

Interrogation Groups (i.e., interagency interrogation teams with apparently-classified rules of engagement). In addition to these rules, each of these agencies has a unique set of rules for detainee/defendant interactions. For example, the FBI, even for domestic interrogations, has now carved out an expanded Quarles25 public safety exception that allows lengthy unwarned questioning “[i]n light of the magnitude and complexity of the

23 Anonymous, see supra note 2 for explanation. 24 See U.S. ATTORNEY’S OFFICE PRESS RELEASE OF JULY 5, 2011(explaining that Mr. Warsame “was questioned for intelligence purposes for more than two months. Thereafter, Warsame was read his Miranda rights, and after waiving those rights, he spoke to law enforcement agents for several days.”); see also Patricia Hurtado, Somali is Charged with Aided Al Qaeda in the Arabian Peninsula, BLOOMBERG (July 6, 2011), available at http://www.businessweek.com/news/2011-07-06/somali-is-charged-with-aiding-al-qaeda-in-arabian- peninsula.html. 25 New York v. Quarles, 467 U.S. 649 (1984) (“[w]e conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination.”) 59

FCDJ Volume V threat posed by terrorist organizations, [etc.].”26 The CIA, on the other hand, would not be in the business of providing Miranda27 warnings, and, one can surmise from the

Warsame case that the CIA may be authorized to use some form of incommunicado detention though anonymous government officials contend the CIA conducted no “direct questioning” of Mr. Warsame.28 What other interrogation techniques are authorized will perhaps remain a mystery until the client agrees to discuss them.

In addition to U.S. government agencies, foreign governments were likely also involved your client’s custody. Press reports suggest the CIA gathers intelligence in foreign prisons, for example, in Somalia, rather than continuing the network of secret prisons it built after 9/11.29

Armed with any of this information, a defense attorney could more carefully discuss with the client how United States agents and others had treated him. He could then seek any medical or psychological assistance needed and assure the client that he will protect him from further mistreatment or interrogation. By focusing on the defendant’s treatment at the hands of others, rather than his indictment, the defense attorney may take one small step toward showing the defendant he is not a “government agent,” but instead he has something of importance in common with the client: he doesn’t want the U.S. government mistreating the client.

26 UNSIGNED DEPARTMENT OF JUSTICE MEMO OCT 21, 2010, “Custodial Interrogation for Public Safety and Intelligence-Gathering Purposes of Operational Terrorists Inside the United States” located at www.nytimes.com/2011/03/25/us/25miranda-text.html?_r=1; Letter from Attorney General Holder to Honorable Mitch McConnell (Februrary 3, 2010), available at http://www.justice.gov/cjs/docs/ag-letter-2- 3-10.pdf; I use the word “expanded” here as a matter of inference because considering the very limited nature of the Quarles public safety exception there would be little to gain in a terrorism investigation from using that exception as a precursor to Mirandized questioning unless one went beyond the narrow confines of Quarles. 27 Miranda v. Arizona, 384 U.S. 436 (1966). 28 See Ken Dilanian, Terrorism Suspect Secretly Held for Two Months, LOS ANGELES TIMES (July 6, 2011), available at http://articles.latimes.com/2011/jul/06/nation/la-na-somali-detainee-20110706. 29 Jeremy Scahill, The CIA’s Secret Sites in Somalia, THE NATION (August 8, 2011), available at http://www.thenation.com/article/161936/cias-secret-sites-somalia. 60

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C. Problem 3: The Language Barrier

Unless a defense attorney is lucky enough to have an Al Qaeda-supporter client who is fluent in English, language will be a large obstacle for the defense attorney. Of course, defense attorneys often face language barriers, particularly those dealing with

United States-Mexico border issues. There are, however, unique issues that arise in Al

Qaeda terrorism cases, and usually these problems are related to the interpreters not the defendants. Primarily the problems are lack of interpreter competence, continuity, and/or objectivity.

1. Defining the Language Barrier: Lack of Interpreter Competence, Continuity

and/or Objectivity

a. Lack of Competence

Compared for example to English-Spanish translators, the pool of Arabic-English translators is very small. The pool shrinks further due to the requirements of terrorism cases. Usually these cases involve classified information therefore requires the interpreter to have a security clearance, to be an American citizen, and not already be employed by another government agency.30 Unfortunately, among the interpreters left to choose from, many are simply poor interpreters. Among other things, they lack technical discipline making them imprecise,31 and they are apparently not rigorously re-qualified periodically.32 For fear of losing their job, interpreters also may not want to admit when

30 Based on personal conversations with various interpreters. 31 For example, the defense attorney and the client can tell the difference between an interpreter who carefully takes notes of what the client says before interpreting and one who just keeps up with the conversation. Also, unlike many Spanish-language interpreters in the federal system who can simultaneously translate conversations, I have not seen an Arabic translator for the defense or prosecution who could simultaneously translate. Of course, the Commissions’ courtroom translators were trained to do this. But see supra note 26 and accompanying text. 32 This comment is based on personal observations during my work with multiple interpreters over three years, frank conversations with interpreters and conversations with many defense attorneys. 61

FCDJ Volume V they simply do not fully understand the defendant’s dialect. This problem is exponentially compounded when a defense attorney needs them to translate complex legal matters like the purpose of particular hearings, the meaning of motions and pre-trial offers, etc.33 Interpreters are also human and may not be physically capable of accurately interpreting the long-winded, complex monologues many defense attorneys offer their clients.

Of course, the client will want his words interpreted correctly. Many Al Qaeda supporters have learned some English in school or elsewhere and can sometimes actually hear the interpreter misinterpreting what they say.34 Such problems can be fatal to the client’s trust of the process. An example of this, on a grand scale, occurred during the ill- fated, original military commissions of the 9/11 co-conspirators. With the whole world watching, mistranslations such as the following occurred: as the defense attorney announced he was “appointed by the chief defense counsel,” the court translator said in

Arabic that the defense counsel “was appointed by the prosecutor.”35 The problem became so acute that the defense had to file a “Motion to Stay the Proceedings Until a

Competent Commission Translator is Provided.”36 Unfortunately, when the government’s own interpreters lack skill, the defense attorney cannot expect better.

b. Lack of Interpreter Continuity

33 Id. 34 Id. 35 Defense Motion to Stay the Commission Proceedings Until a Competent Commission Interpreter is Provided, U.S.A. v. Mohammed, July 30, 2008 available at http://www.defense.gov/news/KSM%20et%20al%20-%20D%20- %20018%20Motion%20to%20Stay%20Proceedings.pdf. 36 Id. 62

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Because the pool of Arabic-English translators is small, their schedules may be difficult to coordinate, and they may regularly seek employment that makes them unable to take on additional case assignments. Thus, continuity of interpreters becomes a serious problem. Ideally, you would use one or a very small cadre of interpreters as you worked through your case. For one reason, the person competently speaking the language of the client tends to eventually form a useful bond with the client. This relationship becomes important to future case discussions where a detainee will be counting on clear, sound interpretations of advice on difficult decisions covering everything from complex plea offers and cooperation agreements to how to track down evidence and why such investigation is necessary. Unfortunately, every time a new translator is brought in the attorney must spend inordinate amounts of time explaining background matters to the interpreter, in addition to explaining to the client, among other things, where the old interpreter went and the impact on confidentiality of this revolving door of translators.

c. Lack of Interpreter Objectivity

Most Arabic-English translators were born and lived overseas for some time.

Unfortunately, this means your interpreters may have biases against your client for what

“jihadis” have done in the interpreter’s home country or to the cause of Islam. While this may never come to your attention, clients can be quick to pick up on bias.

2. How to Break Through the Language Barrier

The right defense team can break through the language barrier. Of course, the team needs a good interpreter. Ideally you would also put a lawyer on the defense team

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FCDJ Volume V who can speak the defendant’s language (in most cases, modern standard Arabic suffices) and who grew up overseas. This was done in several GTMO cases with good results.37

The primary goals of the defense attorney in obtaining interpreters should be competency and continuity. That is, the interpreter, or team of interpreters, must be good at their job and ideally be able to remain on the case for the long haul. To begin, vet your interpreter just like you would vet an outside attorney or investigator you were considering bringing onto your case. Interview them, ideally in person. How long will they be available to work on the case? What experience do they have? What training?

Are they required to keep up their qualifications as an interpreter? How? Have they ever interpreted for lawyers? For defense cases? Even if your interview with the interpreter occurs only on the phone, you will gain valuable information. You can also use the opportunity to learn about cultural issues related to your client. Also, talk to others who have used the interpreter. What was their experience?

When it comes to competence, or the actual on-the-job performance of your interpreter, be sensitive to what the client thinks of the interpreter. If the client speaks some English, take some time out of the interview to ask the client whether he has any concerns with the interpretation.38 This should be done outside the presence of the interpreter, not for fear of offending the interpreter but because, despite your client’s possible reputation as a ruthless killer, he may be from a culture where rudeness is not acceptable. He may not be willing to speak ill of the interpreter in the interpreter’s

37 Personal Conversations with Mr. Ramzi Kassem, Esq. Mr. Kassem is a New York law professor born in the Middle East who speaks fluent Arabic and has represented multiple GTMO clients in both habeas and Commissions proceedings. Importantly, he has managed to maintain client relations over the long haul. Other defense attorneys who speak the client’s native language have also had success in forming and maintaining effective client relations. 38 Of course if your client speaks little to no English, he will probably never complain about the interpretation of his words because he will not understand the interpretation. 64

FCDJ Volume V presence. Additionally, if you have someone on your team who speaks Arabic, they should be listening carefully to ensure quality translation. In this way, you may be able to determine if the interpreter is simply a poor interpreter and/or is not the right interpreter for this assignment because he, for example, does not understand the client’s dialect.

On the practical side, the most competent interpreters I have observed carefully take notes of what is being said by one party to the other. After one party has completed his thought, the interpreter uses his notes and interprets the full content of the other party’s statement. This is hard work for interpreters and the more accuracy you expect of them, the shorter your meetings will have to be. Successful interpretation can also be more informal, i.e., off-the-cuff, virtually simultaneous translation without notes, but depending on the importance of the matters being discussed, one should adjust their expectations of the interpreter. For example, a defense attorney’s “alarm bells” should go off if the interpreter uses the same informal techniques to translate both the client’s thoughts on the World Cup and his request for assistance with an important family matter.

Finally, weeding out interpreter bias will be very difficult. When considering bias, however, put yourself in the interpreter’s shoes. Many of the available interpreters grew up in the Middle East. Some interpreters grew up in the midst of civil war in which they took sides. The civil war might have involved invasion of their country by “jihadis.”

How did this affect them? How about their family? Did they have family members killed? How did it affect their country? Did they have to leave the country because of the war? These can be loaded questions so, depending on how you approach them, it

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FCDJ Volume V may be best to handle them in person with the interpreter. They are also best handled with someone present who knows Middle Eastern history, ideally someone on your team, as mentioned, who grew up in that part of the world and can see how genuine the answers to the questions are.

Of course it may be tempting to simply seek out a U.S.-born interpreter to avoid this bias issue. In general though, despite the risk of bias, it is probably best to have an interpreter from the region of the world your client is from. They will likely understand your client better (both linguistically and culturally) than a non-native interpreter. One needs to balance this certain cultural benefit against the usually smaller possibility of ending up with a biased interpreter.

D. Problem 4: Cultural Differences and Exploitative Rapport-Building

Misunderstanding where your client is from and how people in that culture interact for personal and business reasons is a sure way to cause uneasiness in initial meetings with Al Qaeda supporters. Respecting cultural practices then is key to establishing even a minimal level of rapport with the client. “Know the culture” is, of course, not an original admonition. Any businessperson or lawyer dealing with foreign clients could tell you this. An important difference in the case of Al Qaeda supporters, however, is that the government may have already booby-trapped the defense attorney’s cultural road to “rapport-building.”

1. Exploitative Rapport-Building by Government Interrogators

The most effective interrogators treat terrorism suspects with respect and observe cultural practices. In Middle Eastern cultures, for example, business is usually not conducted until after people have had lengthy discussions of family, friends, politics, and

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FCDJ Volume V anything but the business at hand.39 Ali Soufan, the former FBI agent famed for ferreting out Khalid Sheik Mohammed’s key role as mastermind of the 9/11 attacks, explains that interrogation suspects are surprised to be treated with respect and to engage in conversation. “[T]hat scares them, that shakes them, because they were trained that we are so evil and we torture and we kill . . . .”40 He explains that the use of “knowledge and empathy” allowed him to build rapport with another terrorist who accidentally identified

Mohammed as the 9/11 mastermind.41

When a client expects respect for his cultural practices, type-A American lawyers can harm their rapport by pushing the conversation to business prematurely. By slowing down and simply aping the “rapport-building” techniques of interrogator’s, however, they may inadvertently “confirm” the suspicions of their client that they are a government agent.

2. Culture Cure

In the case of rapport-building, a sincere attempt by a defense attorney to respect

Middle Eastern cultural practices could backfire depending on how much the approach resembles the manipulative use of this technique by the defendant’s interrogators.

Nevertheless, on the whole, the practitioners consulted for this article agree that one must, at a minimum, respect the cultural practices of the defendant or risk failing to form a productive relationship.42

39 Based on personal experience in North Africa and conversations with clients, interpreters and attorneys from the Middle East and North Africa. 40 Ex-FBI Agent Who Interrogated Qaeda Members Speaks Out, CBS NEWS (Sep 9, 2011), available at http://www.cbsnews.com/2100-18560_162-20104007.html 41 Id. 42 This is based not only on practitioner interviews on file with the author but also on personal conversations with defense attorneys and, most importantly, my own mistakes and successes, such as they are, in building rapport with GTMO clients and multiple former GTMO detainees. Rapport is built with respect. 67

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To learn and understand Middle Eastern practices, there are some simple steps.

First, the ideal: enlisting a trial team member of Middle Eastern descent who is Muslim and speaks Arabic. This practice has been successful at GTMO, perhaps more so than other methods of trust-building.

Short of loading the team with person of similar background to the client, personally understanding basic cultural practices is not difficult for an educated attorney.

In addition to reading and watching videos on the topic, the defense attorney is best served by talking to people who grew up in the part of the world from which the defendant hails. Interpreters, as mentioned, are a great source of information and can usually keep an attorney from doing insensitive things.

Practitioners agree though that there is no replacement for actually visiting the client’s home country. This is, hands-down, the best way to learn the client’s culture. A home country visit is something that obviously happens after the initial meetings with the client, but these visits and what is learned from them help solidify the attorney-client relationship for the long haul. Having said that, consider Problem 5 (The Al Qaeda

Family Dynamic) below before planning a trip to visit the client’s family.

In addition to solidifying the attorney-client relationship, understanding cultural practices and patterns of thinking will also become important down the road for explaining choices the defendant made during his alleged support for terrorism. A defendant may have made choices about his involvement in a terrorist organization that can only be understood in the context of his particular tribal culture. Consider, for example, that strong cultural taboos against turning out a guest and the cultural need for saving face contributed to the ’s refusal to turn over to the U.S.

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FCDJ Volume V prior to and in the wake of 9/11. A choice the Taliban made that some interpret as purely an attempt to support bin Laden’s killing of civilians though culture certainly played a role.43

In sum, the defense attorney must quickly learn, through books, conversation, etc., as much as he or she can about the client’s culture. When attempting to put these lessons into practice, however, keep in mind that the client may view even these well- intended efforts through the lens of how interrogator’s have manipulated him in the past using rapport-building techniques. There is no cure-all for this problem; only time will tell.

E. Problem 5: The Al Qaeda Family Dynamic

For many defense attorneys one of the first things they ask a client is “What can I do for you?” This is usually followed with a critical rapport-building question: “Do you need me to contact your family?” In the case of Al Qaeda members, this family question can be fraught with danger. There are two primary reasons for this. First, Al Qaeda supporters follow very strict Islamic practices in regard to their wives, mothers and other females in their family; in most cases male attorneys will not be permitted to speak to the client’s female family members.44 As one practitioner put it, “I found out the key to my client was his mother, but I couldn’t talk to her.”45

Second, some Al Qaeda members find their wives through Al Qaeda leadership.46

This mean their in-laws may be wanted Al Qaeda supporters. They are, so to speak,

43 David B. Ottoway & Joe Stephens, Diplomats Met with Taliban on Bin Laden, THE WASHINGTON POST (October 29, 2001), available at http://www.infowars.com/saved%20pages/Prior_Knowledge/US_met_taliban.htm (discussing U.S. negotiations with Taliban). 44 Anonymous, see supra note 2 for explanation. This information also comes from personal conversations. 45 Anonymous, see supra note 2 for explanation. 46 Anonymous, see supra note 2 for explanation. 69

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“married to the mob.” Thus, the client may fear the United States or one of its allies

(e.g., notorious torturers like Egypt or Jordan) will capture a family member to pressure the client into cooperating with Western governments. They are thus understandably suspicious and fearful when a defense attorney they see as a U.S. government official begins asking about their family. Many would die before voluntarily putting their family at risk of capture.

Because of these fears, it could be a grave mistake to prematurely ask about the client’s family. Having said that, contacting the family will, in all likelihood, become important. At an appropriate time, an attorney might ask the client if the client would like him to contact his father, a brother or an uncle. Or the attorney might seek out an attorney from the client’s home country to handle matters with the family back home.

This area requires creativity, patience and resolve and will largely depend on the client’s cooperation and the resources available to the attorney. At a minimum, the attorney must be aware that this is an area of particular sensitivity in these cases.

F. Problem 6: The High Profile Nature of Al Qaeda Terrorism Cases

1. The Diva Client and the Devious Lawyer47

Terrorism cases are high profile. Clients know this, particularly those who understand the value of propaganda to their cause. Unfortunately, the client may come to think he is a celebrity. This can lead to several problems. First, a “celebrity” client may expect different treatment than other prisoners. When the defense attorney is

(legitimately) unable to produce, for example, improved confinement conditions, the client may become (illegitimately) frustrated with the attorney’s performance. Second,

47 This section is based on personal conversations and anonymous defense attorney interviews on file. See supra note 2 for explanation. 70

FCDJ Volume V the client may think his celebrity status gives him a high-profile stage from which to espouse his ideology; in extreme cases, he may see this stage as a means to cement his legacy as an imprisoned martyr. His “cause” then, may seriously interfere with his helpfully participating in his own defense, particularly since he may abandon defending himself altogether as I discuss below.

Even when the client is open to actively pursuing a defense, he may come to believe the high-profile nature of the case means his defense attorney’s motives are most likely self-serving. The client may believe that his attorney, who may have discussed plea bargaining with him, stands to garner accolades from the government for bringing such a high-profile case to a successful pre-trial resolution, particularly if the resolution involves substantial cooperation. Additionally, clients are not oblivious to the fact that some defense attorneys take on high-profile cases simply to increase business. (It seems the suspicion with which most lawyers’ motives are viewed is an unfortunate cross- cultural phenomenon.) For example, as the client becomes aware of his defense attorney’s statements to the media about the case, the client may interpret even well- intended defense attorney interactions with the press as self-serving.

2. Immunizing the Client Against Celebrity and Mistrust

To confront the celebrity problem, practitioners who have faced this problem explain that the defense attorney should attempt to disabuse the client of the notion that they are particularly famous.48 Even if one’s name shows up, even repeatedly, in the

Washington Post or on the network, that does not mean his case will be processed any differently from any other case. He will be treated like other pre-trial defendants, perhaps worse because of the additional security concerns surrounding their

48 Anonymous, see supra note 2 for explanation. 71

FCDJ Volume V case. Furthermore, of the 700-plus detainees held at GTMO, even the client, who may have followed GTMO matters with great interest, will probably have trouble naming all but a small number of them. People quickly forget.

Perhaps most importantly, the defense attorney should explain to the client that, in many cases, high profile media exposure can give the defense a means of getting out their defense themes to counter the onslaught of negative media coverage that is certainly infecting potential jurors. If the distrust is strong enough, a defense attorney also could offer not to make statements to the media without first discussing them with the client.

Further, as hard as it is for some defense attorneys to say “no comment,” that response, when warranted, limits the self-aggrandizement concern. In short, the defense attorney must try to ensure the client understands the media exposure is for the benefit of the client.

G. Problem 7: Boycotting and Pro Se Representation

Ultimately, if an attorney fails to effectively confront the problems above, the client will probably boycott the proceedings or proceed pro se. In either case, the defendant suffers. The client is unqualified to represent himself pro se if for no other reason than that he does not have clearances to review the classified discovery in the case. Additionally, while boycotting a U.S. military commission may serve certain secondary goals, such as focusing Westerners’ attention on the alleged unfairness of the system, a boycott of a federal trial is fairly senseless since few countries, and certainly no

Western power, seriously question the legitimacy of federal trials. Furthermore, boycotts and pro se representation make the defense attorney’s job confusing and sometimes

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FCDJ Volume V embarrassing, and such forms of representation can weaken and/or waive legitimate appellate arguments.

Additionally, boycotts and pro se representation can raise a host of sticky ethical problems for the attorney. Ostensibly, a defendant who proceeds pro se creates no ethical dilemma for the defense attorney because the attorney is not actually representing the defendant. If, however, as is likely, the defense attorney is appointed “standby counsel” to a pro se client, what is he to do when the client does not show up for court and the client has directed the attorney to do nothing? State bars approach this question differently with some directing the attorney to treat the client as incompetent and others saying to do nothing as the client directed.49

In another scenario, the client might accept the representation of the defense attorney but decide his attorney is to do nothing. Having accepted the representation, however, the attorney now has a multitude of strategic decisions that are the attorney’s, not the client’s, to make. If, however, the attorney takes action in the face of the client’s direction to do nothing, for example by filing a discovery motion, the client may fire him.50 For most defense attorneys, the risk of being fired goes with the territory. In a

49 Lt. Col. Bryan Broyles, Deputy Chief Defense Counsel and Ethics Advisor for Military Commissions (comparing respectively Kentucky and California bar opinions provided in military commissions cases). 50 For the defense attorney’s nightmare scenario of an unqualified pro se defendant retaining strategic control of the case but having his “stand by” counsel essentially do the work, consider the case of Al Qaeda’s “Underwear Bomber.” See Abdulmutallab Lawyer Fails to Censor Bomb, CBS NEWS (October 11, 2011), available at http://www.cbsnews.com/stories/2011/10/11/national/main20118562.shtml (explaining the civilian “stand by” counsel: “came to the case a year ago after [Umar Farouk] Abdulmutallab fired a four-member team from the Detroit Federal Defender Office and said he would represent himself. It's common for a federal judge to appoint a lawyer as ‘standby counsel’ to assist someone who chooses to go alone. But the judge has allowed Chambers, an attorney for 26 years, to do more than stand by. He filed detailed challenges to the government's use of Abdulmutallab's incriminating statements made from a hospital bed and without Miranda warnings. He thoroughly cross-examined a pharmacologist who testified during a pretrial hearing about the effects of a painkiller given to Abdulmutallab for his burns before the FBI interview. ‘The goal of the court is to get the best representation so no one down the road can claim (Abdulmutallab) was railroaded or forced to assume a responsibility he could not handle,’ explained David Steingold, a longtime Detroit defense attorney.”) 73

FCDJ Volume V case, however, where the appointed attorney may have one, and the only, shot at forming a relationship with the accused, it serves no one’s interest for the attorney to provoke the client to fire him.

While it is beyond the scope of this paper to address these ethical problems in great detail, experience teaches that boycotts and pro se representation in federal court only hurt the client from trial through appeal. These ethical problems are compounded in capital cases. The goal of this paper, however, is to help attorneys build productive attorney-client relationships and thereby avoid boycotts and pro se representation.

IV. CONCLUSION

I have attempted to lay out the key difficulties attorneys face in representing Al

Qaeda supporters. Each case is different. One case may present all the problems listed; one may present none. The defense attorney will best serve his potential client by doing his or her best to prepare for all these problems. If they do not develop, the defense attorney can sigh in relief and move ahead. If these problems arise, however, the defense attorney will be prepared to make his or her best effort to form and maintain a successful attorney client relationship.

There is no doubt that Al Qaeda and those who support its mission are dangerous criminals bent on imposing a vision of the world that is incompatible with individual liberty. When brought before a federal court, however, they must receive a zealous, effective defense to ensure their, and all defendants’, rights are protected and to prevent corruption of the federal system with procedural complacency. My goal in this paper is to ensure even the so-called “worst of the worst” receive zealous defense from the “best

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FCDJ Volume V of the best.” Thus, if and when these clients are convicted, there can be no doubt cast on the fairness or legitimacy of the U.S. justice system.

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