Cheryl Bormann, counsel for defendant Walid bin Attash, has created a stir over wearing a hijab to the military tribunal and asking other women to cover up out of respect of the Muslim sensibilities for the defendants. I have received a fair number of calls on this from reporters and lawyers due to my past representation of Muslims in national security cases. I believe the display was a professional and tactical mistake and I would not want someone on my team to try to make such an extreme accommodation to a client.
Bormann requested a court order for other women to follow her example, at least in dressing modestly, so that the defendants do not have to avert their eyes “for fear of committing a sin under their faith.” She insisted that her hijab was necessary since, “[w]hen you’re on trial for your life, you need to be focused.”
First, I should acknowledge that I have refused to take cases in military tribunals and I do not believe that lawyers should legitimate these proceedings. However, I recognize that this is a personal choice and many lawyers in good faith have chosen to take these cases and make the best of a bad situation. I will also note that reporters often adopt the garb of a country to facilitate an interview as do, on occasion, diplomats and politicians.
However, regardless of the forum, I do not believe an attorney should accommodate a client’s beliefs to this extent. It is important for clients to understand the relationship with an attorney is a strictly professional one. Moreover, they appear in a court that reflects the values of a pluralistic society. While you are allowed to personally follow any set of moral beliefs and practices, you cannot force others to adhere to those values. Just as a “jury of your peers” does not guarantee you twelve hardcore militants, a fair trial does not mean a court that meets your aesthetic or religious tastes.
I believe it is a serious mistake to blur that line with a client. A client can always seek to have a new lawyer. However, if a client were to insist on my dropping a young female associate from the team, I would file for my own representation to end with the associate’s representation.
I do not believe that distraction concern is a serious one. If a defendant is not focused by the potential of his execution, a longer skirt is not only to succeed. Death penalties tend to concentrate the mind of the most distracted defendant. If not, I doubt the longer skirt will overcome the problem. Zacarias Moussaoui was obsessed and filled with hatred toward Judge Brinkema regardless of her wearing a judicial robe. He was a hate-filled and unbalanced fanatic who hated women, Jews, and most everyone. In this case, the attorney should have insisted on appearing in her normal professional garb. Over the months of preparation, the clients would have to be get to speaking to her and other women dressed in a modern fashion.
Just as we would not ask to remove minorities for a racist client, we should not accommodate beliefs that are viewed as sexist by the majority of our society. The fact that they are religious based does not alter the situation.
I also believe that this public display undermines the credibility of counsel. The basis for the display and the motion is highly questionable, particularly in a proceeding where the female attorneys are already in uniform. That leaves reporters and observers who should not have to find the lowest common denominator with a defendant to maintain “focus.”
It is not clear why counsel would want the focus of the trial to begin on such a stylistic or religious point. There are ample reasons to object to these tribunals as little more than Kangaroo courts. However, Bormann hit on the one element that is missing from the tribunal that is not a shortcoming. While I would not describe the tribunal as a true court of law akin to an Article III federal court, it is not a Sharia court. I would prefer the opening fights to be over the unfair procedural and evidentiary rules rather than counsel’s dress code.