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.
Source: MSN
“I think they need to educate the American public that these trials are a sham. I agree that they might be going too far with this dress code accomodation, but it pales in comparison to the stacked court against them.”
I can think of very little that would turn more people against the idea that the defendant isn’t getting a fair trial than this. “See, the trial’s so fair, the only thing they have put on this bit of theater to have anything to complain about.”
This is such a huge tactical blunder that it’s amazing nobody’s suggested the defense is really working for the prosecution yet.
NP
They do! OVER THE JUDGES HEADS. YOU’VE HEARD THAT JUSTICE IS BLIND. HERE THEY ARE ALSO DEAF, AND DEFINITELY DUMB.
pS
Seems only fitting that everyone in a kangaroo court should wear pouches.
AY,
In my experience as a UCMJ court martial judge, I’ve never seen any high class stuff. So, respectfully, on what do you base your support for the views you write?
I have to agree with the professor on this one…..
The only due process you get in a military adjudication is exactly what they wish at the moment…. Nothing more nothing less….. Notice I did not say trial…. It is not fair….. But then again, hilter thought that it was the very best justice one could give…..
Lastly, I wish thtat JT’s ADC’s would do better garble, logic and just plain typo checking. Today, must have set a record. Outside the bounds of the Correction thread. (I was too lazy)
Said at the risk of being forced to accompany Dante on his next guided tour of the Inferno. Prepaid ticket courtesy of services rendered: blasphemy, etc.
OT
To those wondering what the Christian right’s next step will be; let me refer to history and Toledo under Muslim rule: The monks repeatedly blasphemed Mohammed publically, and refused to recant. Accordingly their heads were severed from the part which they had given so poor guidance to. The question they are discussing is which of the primary drop-outs will go first. Since no suitable sword or executioner was found, they are in a quandary over those issues also.
The whole trial is a farce, intended in my opinion (have I not heard it here), to distract from the prime issue which should be a daily headline in the NYTimes and all major media channels: ie the infamous tortures and illegal endless war used te incarcerate in eternity to the unrepentent muslims.
There other propoganda uses by our government are equally despicable.
Sling,
And of course, in accordance with your thinking, the muslim courts trying secular Americans should provide uncovered women to help the defendants concentrate on their own defense.
Are you applyiing for ringmaster for that case too?? Good luck with that.
Sling,
Do we provide them with prayer breaks at the proper times adjugged by muslim sources?? However, their fighting against us has the consequence of seeing just those consequences (uncovered female flesh) for which they were fighting us.
Our pluralism should nnt be abandoned with respect to their religious creed.
In short, I disagree. It was a sweet argument you gave. Very heart-breaking. It broke also the essence of the clash we will punish them for, if they are found guilty.
Well, thanks for clarifying that you are in fact serious.
Um, one more thing, what is your expertise in Islam, and your specific expertise in their particular version of it?
“I can’t tell if you’re serious or not.”
There is actually something more one could do to them.
One could torture them some more before executing them. But that’s about the extent of it.
To be clear – I was very serious.
Their religious belief is perhaps the only freedom they will ever experience again in their lives. The court arrangements are directly attacking that.
JT:
rafflaw 1, May 7, 2012 at 12:54 pm
This essence of these ongoing media stunts has me asking why?
Are they trying to show how good military jurisprudence is, as a model for the future?
If so boycotting them is the thing to do.
“Then you put them in a room with uncovered females. Short of executing them, there is nothing more you can do to them.”
Okay, I admit it, Poe’s Law.
I can’t tell if you’re serious or not.
Sling, well said.
Well, props to the defense attorney.
This week was looking a bit boring, but now I know every right wing nut in town is going to be railing about this is the beginning of Sharia Law, and luckily my new faux anti-sharia law blog launched last week, so I am expecting an instalanche any moment now.
I agree sling!
“Moreover, they appear in a court that reflects the values of a pluralistic society.”
There is a factor that you might be overlooking.
If the defendants had been living in a pluralistic society, such as in the USA, it would be very fanciful for them to suddenly become offended by female ‘indecency’.
However, if they have been lifted from an environment in which females covered themselves, then seeing these uncovered females in the courtroom would be genuinely offensive. Obliging them to be in the presence of uncovered females is maltreatment.
“Surely you’ve got more important things to worry about, Buddy” is not an excuse.
One might take the view that because
(1) they are guilty and the trial is simply window-dressing
(2) they have been imprisoned and subjected to torture
then who gives a hang what they find offensive? As an extra feature, it’s no big deal -to our perceptions at any rate.
On the other hand, one might take the view that even in a military trial, the defendants are innocent until proven guilty.
Given that they have been imprisoned without trial for a decade, tortured and subjected to harsh conditions, I don’t we should be beating any pluralistic or fairness drums.
One might like to consider that after a decade of US hospitality, their religious belief is the only thing of their own that is left.
Then you put them in a room with uncovered females. Short of executing them, there is nothing more you can do to them.
I understand the issues at hand here, but do we really believe that these military tribunals are fair and equitable? Do these trials provide the defendants the normal due process that is required in civilian courts? The answer is no and that is why these defendants are being “tried” in these tribunals. If you have a patently unfair procedure, how should the defense attorneys proceed? I think they need to educate the American public that these trials are a sham. I agree that they might be going too far with this dress code accomodation, but it pales in comparison to the stacked court against them.
The defendants in this case are intent on turning it into a circus. I hope the Judge does not let them do that. It is not without precedent to sequester defendants in a separate room with remote audio/visual feeds if they become too disruptive.
The comparison with a demand of a defendant to require all counsel and jury to be of the same ethnic group is a good analogy.
http://goo.gl/ERdkp