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
Remember, the chief prosecutor (I have now forgotten his name, sorry) at Guantanamo was told that IT WAS NOT PERMISSIBLE FOR THERE TO BE ANY ACQUITTALS. He resigned. Under protest. And blew the whistle. And made it into the NY Times with his specific and credible complaint. So frankly, I don’t care WHAT the defense counsel does to try to provide a defense for her clients, in my book, she’s got carte blanche on that one.
Well said seamus and thanks for the background on the attorney!
Seamus, thanks for your info re: the attorney.
Sling, A+
Seamus,
First, I appreciate your helping us in our search for the motivation and strategy. ´
Second, it is meaningful when someone who considers themself well-acquainted gives personal insight. Third, it being some few months since I
googled on the subject of the convention and the USA’s signing statement and subsequent reservations, etc. that my memory would need refreshing. However that may be, if correct, then the following might be pertinent.
The USA from the beginning said that its laws then were in accordance with the convention, and later reserved to itself and its laws to determine if and what any events would be examined vv the convention. This in effect gives some weight to what Fox News asserts that “foreign law” does not apply to us—if we ignore the obvious point that by accepting the convention, with reservations, gives it the weight of our laws. I, earlier, wrote mentioning what I had interpreted as the “loophole” used by the Justice Dept. to “free” from prosecution admissions of torture-like practices as actionable. The particular reservatin text is I believe the one cited by Dredd on the “Shame on Yoo” thread. However, it is of course available in the USA reservation. My interpretation was incorrect, I later understood, when finding the text says “intended” rather than “intends”.
This is not apparently your primary issue, which I interpret instead as dismay in the “defense” bar supporting by its presence the trial….your characterizations omitted for no other reason than I am writing from memory, and won’t cut and paste for now.
Further your mention of killing those held in “cages” I interpret to mean it includes all those so incarcerated without consideration of the construction of the holding place. That to me is not as important as the inhuman violations visited on this particular individual, which while not clear in my mind what they were, seem well-accepted as being true for most held at G-bay.
Your interpretation of her “equipment” is something worth pondering if it not very and sadly true in this case. But then how many shirk their oaths nowadays. Then how dismal the idea that most participants are violating theirs. How many are conscious of this is a question which it is unlikely we will ever know the answer, striking the possibility of a new book of “confessions”.
Mike: “true sensitivity to the defendants’ religious beliefs would require that she be replaced with a male lawyer.”
That would only be the case if the religious belief were that any communication with a female was a grave sin.
In this case it is only necessary that the female lawyer cover herself ‘decently’.
“if I am representing a Sikh, no one would expect me to wear a turban.
The Sikh would, if he believed that for anyone not to wear a turban was a grave sin.
But then, unless the Sikh had been abducted from a world in which everyone wore turbans for that reason, he might be being unreasonable.
I’ve known Cheryl Bormann for well over ten years and consider her a dear friend. Prior to representing the suspected terrorist in the present case she worked for the Illinois Appellate Defender’s Office in their Capital Litigation Assistance Unit. Prior to that she worked in the Cook County Public Defender’s Office, some of that time in their Murder Task Force which focused on capital murder cases. She is not a clown, a patsy, or a radical. She is an out standing attorney who has a deep belief that persons, no matter how vile, need not be killed by the State when they are being effectively held in cages.
I have not discussed the present case with her and do not presume to speak on her behalf, but I suspect her main goal was to develop a report with a defendant who has been tortured by our government for the past 12 or so years and has been asked to put his faith in a stranger who has been appointed to represent him.
Is she going out on a limb strategically? Perhaps, but remember there is approximately zero likelihood that the court will stop itself from considering evidence obtained by torture. This is a show trial, and there is a chance approaching 100% that her client will be killed by the opposing party when the case is over. The United States has been a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment since the Reagan administration. Knuckle draggers and Fox News may rant that this “foreign law” does not apply to us. They are idiots and/or liars.
Believe me when I tell you Bormann is not some self-loathing woman or Sharia-phile. While deeply ambivalent about the defense bar aiding in this farce but I respect Ms. Bormann’s attempts to save her client’s life. I’m confident she’s got the biggest set of balls in “Gitmo” right now.
In my view, Prof. Turley’s analysis is spot on in this instance. Ms. Bormann is not doing her clients any favors with her approach. For that matter, true sensitivity to the defendants’ religious beliefs would require that she be replaced with a male lawyer.
Taking on a client’s case in an American courtroom does not require taking on a client’s religion or culture. That, in fact, is simply a form of pandering. If I am representing a Sikh, no one would expect me to wear a turban.
And to lighten it up a bit, if I am representing a furry, I am not about to show up in court in a bunny suit.
The issue is one of sensitivity to another culture.
The pantomime is that the men are getting a fair trial. That includes the proposition that they might be innocent.
We pluck a man from a culture in which it is unthinkable that he should be in a room with uncovered females. We put him in such a situation. He didn’t volunteer to enter the room.
This is not the situation of someone from a pluralistic society going on trial in a court of that society.
The Koran was perhaps an unfortunate build. I had in mind the unthinking ‘rubbish’ burning by US military leaving Iraqi bases. This was simple (albeit amazing) failure to understand sensitivities.
The other type of Koran burning, say by Christian zealots is entirely different and absolutely intended to inflame.
I have to say that I’m very cynical about the whole thing.
Ideally the timing of the process is that we approach the Presidential election with a message from GITMO to the effect that these guys are in big trouble.
Sentence should not be passed until after the election however. No firm word about death or severity of sentences.
This gives the rednecks the message that retribution is going to be handed out and that POTUS don’t take no shit. He got UBL all on his own and now he’s gonna zap the rest of them.
It removes a head of steam from the more liberal voices who might go insane about the death penalty, fairness, etc. pre-election.
It’s A+
@sling trebuchet: “He might well genuinely find uncovered females to be a very significant affront.
If he is to be obliged to sit in a room with uncovered females, why not really party and burn a Koran or two?”
Why must we take pains to not affront him, as apposed to taking pains to not affront liberated women?
Is it not more offensive to tell a person that their very appearance is an affront then it is to tell a person that they must avert their own eyes if their own sensibilities demand it?
By upping the potential refusal to wear hijabs as an equivalent to burning Korans, you make this an all or nothing situation. As a progressive Christian who belongs to a church that works hard to help bridge the political gaps between religions, I ask you to please, please stop providing such easy ammunition to the Religious Right. Extremism from “Tolerance” advocates, actually does damage to the work of inter-faith dialogue and harmonious multiculturalism.
This request is such perfect bait for the “Muslims want Sharia Law in America!” crowd that I have to suspect it is intentional sabatoge. While Mr. Turley might well avoid military tribunals because of his personal ethics and beliefs, there are plenty of anti-Muslim bigots out there who would gladly serve and do a purposefully poor job of defending the client. A stunt such as “women should wear hijabs to placate the Muslim” is perfectly executed (no pun intended) neo-con trolling as a liberal.
TOC,
So deceitful and cunning, are they, I believe.
Sling,
Admirably written. Good points on which we could agree.
The polemical point making was a detraction, but in all B+.
Guantanamo and all it represents should be dumped/draped on the Capitol until the whole shebang disappears. It is a threat to us, the citizens. And of course the prisoners should be accorded a pension for services rendered to righting America.
But until that happens, I will pay no lip service or other mmeaningless act to beauify hese act. And dertainly not includign debasement of our women. Screw that.
idealist707,
1) It wasn’t an analogy.
2) The request is not that the proceedings be conducted in accordance with the norms of some religion or culture. The request is that females in the court be covered.
“Given that then, he should be given the respect that law and custom dictate here, not in Karachi, Pakistan.”
Right.
That should necessarily mean that he should not be held without trial for 10 years, tortured, shackled, or put through a military trial in a location specifically chosen so as to be outside the US court system.
Guantanamo together with the CIA black prisons that fed it, now and for the past decade is not America’s finest hour.
If there is an affront to the freedoms and standards of the USA, the affront is Guantanamo itself and not a request that females be covered.
Continuing with what “law and custom dictate here” –
Jude says above “Nobody deserves to make a mockery of the values of this country because of their own religious belief”
Before accepting that, people should think about what the values of this country actually are.
After WWII, Japanese soldiers were prosecuted for torturing (including waterboarding) allied soldiers.
1983, a Texas sheriff and deputies were convicted of waterboarding prisoners to force confessions. This and other cases in:
http://www.washingtonpost.com/wp-dyn/content/article/2007/11/02/AR2007110201170_2.html
Should those Texans and the Japanese now be pardoned because the “values of this country” have moved on such that places and processes like Guantanamo enshrine them? Torture no longer unfashionable.
What of the detainees who were released after years of detention and harsh treatment in Guantanamo? Like a taxi driver picked up because he *might* have had information on movements of Taliban leaders? What about the people who just happened to be in the wrong place at the wrong time and/or were sold simply for a bounty? What of those picked up on the basis of faulty intelligence? Where is the “respect that law and custom dictate here” for them?
What of people “rendered” to Syria and other ME locations for what must have been termed “enhanced enhanced interrogation”, rather than plain vanilla “enhanced interrogation”?
These are now actual/real “values of this country”.
I strongly suspect that in the moments just before these men are executed, they will be strip searched in accordance with “values of this country” to ensure that they are not trying to smuggle anything with them.
I don’t pass any judgement for or against these men in this. I simply suggest that in order to take the high ground, one has to actually stand on it.
For those wondering about it being in Guantanomo, I suggest you read the text written showing our accord in implementing a treaty.
ALL, WHICH WE AS A STATE HAVE CONTROL OF IS REGARDED AS OUR JURISDICTION, AND THERE TREATIES AND THUS EVEN LAWS ARE TO BE ACCORDED FULL POWER.
CIVIL COURTS ARE NOT ESTABLISHED FOR GUANTANAMO, NOR ON NAVAL VESSELS, ETC.
I thiink thatis correct and significant.
Sling Trebuchet said:
“Bormann represents Walid bin Attash.
This is a man who up to the time of his 2003 arrest/abduction in Karachi, Pakistan, lived in an environment where females covered themselves.
He might well genuinely find uncovered females to be a very significant affront.
If he is to be obliged to sit in a room with uncovered females, why not really party and burn a Koran or two?”
———————————————————
Let me extend your analogies my way.
If he should live here and have a job, then what would he be confronted with? If he was invited by his collegues to a pool or a sitdown party, whatever, what would he be confronted with? Would he have come? Would he even be here in the USA. Now fanatics are welcome to be fanatics in their own territory, but when they are accused of crimes aimed at Americans, I find it only just that having decided that we have jurisdictio, thet he should tried in America (or there we have control thereof).
Given that then, he should be given the respect that law and custom dictate here, not in Karachi, Pakistan.
If they hold trials in graveyards (for convenience?), must we do the same in consideration of him?
But to hold the trial in accordance with the Koran is not required nor is recommended. If his religion requires ritual slaying of babies and the sprinkling of their blood be part of a trial, then to folllow his wishes in accordance with that would not be good, ehhhh.
I rest my case.
Henman said:
“The Constitution is still being kicked behind the door and I don’t see any chance of this election changing that. A spineless Republican worm running against a spineless Democratic worm gives us no hope at all of progress in restoring the Constitution and the rule of law in the next four years.
Maybe we should stop voting for status quo hacks and demand a radical reversal in the erosion of our rights as Americans. Maybe we should start voting for a man or woman who waves the Constitution in our faces instead of a flag, or an empty promise of a job, or “wink, wink, everything will be better AFTER the election”.” end quote.
I think it’s fine doing a Dredd this way. Just because I thought this was better to quote than reading some of the endless, well-documednted, well-reasoned but clueless rants here.
Henman, the days of “you know who has the power here, which some have rightfully implicated, could hopefully be shortened if we follow the strategy of your last paragraph.
How should we begin? Top down, or bottom up?
MikeS (out of politeness only, no groupie stalking here)
“…You know very well who’s been running this country and it isn’t the people we’ve elected, though they do have restricted freedom of action.”
I once asked Obama this question about his restricted freedom of action. Several times in different ways-
Guess the selection system did not select my question.
Of course, it’s been registered by SS, FBI, anc CIA (that Domestic blabla where the chief got an IBM job recently—I thought domestic spying is forbidden to the CIA. “Oh, this is not spying, it is searching for terrorists, and some might be domestic.” Continued discussion…….blabla.
Jude,
If you agree that the court is not legitimate, then the biggest joke is on the American public because we are being sold a bill of goods. The next time we could be the boogie men that someone wants to hold us for years without a charge or a trial.
Jude,
Where is the trial being held? Guantanamo? Guantanamo isn’t the US that’s why it’s legal to torture and hold indefinately without charge or trial. (Well, it used to be illegal to hold indefinately without charge or trial in the US but that changed years after Walid bin Attash was moved to Guantanamo. I’m not sure about the torture thing.)
I agree with the Professor’s analysis of this situation without reservation.