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 Lieutenant Commander in the United States 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 United States Navy. 50 FCDJ Volume V 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 51 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, Cuba, 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, THE WASHINGTON POST (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, THE SUNDAY TIMES (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 David Hicks (Australia), Moazzam Begg (England) and Omar Khadr (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. Carol Rosenberg, Khadr Plea Deal Reveals a 'Get Out of Guantanamo' Strategy, THE MIAMI HERALD (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 War on Terror 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 FCDJ Volume V 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.