Enemy Combatant Jihadists in Civilian Courts — The Lunatics Run the Asylum

Here we go again. Recall that the Obama administration chose to indict Osama bin Laden’s son-in-law in civilian federal court for the 9/11 attacks and the overarching al Qaeda conspiracy to kill Americans -- thus undermining the military commission case at Gitmo against Khalid Sheikh Mohammed and the other 9/11 attackers. Now we learn that the civilian court rules are being bent so that the accused terrorist, Sulaiman Abu Ghaith, is permitted to retain a lawyer beset by serious conflicts of interest that will create significant appellate issues even if Abu Ghaith is convicted.

At the New York Times, Ben Weiser reports that Abu Ghaith was initially given representation by the Legal Aid Society’s public defender’s office when he was arraigned on the charges in Manhattan federal court in March. This is standard procedure.

The Sixth Amendment right to counsel is not right to counsel of one’s choice; it is a right to competent representation. Defendants who cannot afford to hire their own lawyers are represented by Legal Aid or, if the public defender is conflicted (usually because the case involves multiple defendants and a lawyer is only supposed to represent one), by a private defense lawyer off a panel organized under the federal Criminal Justice Act. And even defendants well-heeled enough to hire their own lawyers do not have an unlimited right to counsel of their choice. They have no right to representation by, for example, a non-lawyer, an incompetent lawyer (e.g., one not versed in the criminal law), or a lawyer not admitted to practice before the court where the defendant is indicted. More to the point, there is no right to representation by a lawyer who is saddled with conflicts of interest -- either because he has represented other people relevant to the case (e.g., other defendants, coconspirators, or potential witnesses) or because he has had his own run-ins with the law. Such a lawyer will be barred from participating in the case unless the court finds that (a) the conflict is attenuated enough that it can be waived and (b) the defendant has waived it knowingly, intelligently, and voluntarily.

In my experience, these are the worst kind of issues for a prosecutor to litigate. The prosecutor is obliged to make a vigorous argument that the conflict is likely to sow reversible error into the trial. I have always believed there are too many unknowns before a long, complex, unpredictable trial for a waiver of a conflict to be knowing and intelligent -- and a person cannot be said to waive voluntarily something that cannot realistically be understood at the time of the waiver. Maybe it will turn out that a former client of the lawyer will become an important trial witness for the government -- and the lawyer, because of his continuing obligation of fealty to the former client, will not be able to conduct cross-examination. Or, if the lawyer is being investigated by the government for his own wrongdoing, maybe developments in that investigation will give the lawyer a powerful incentive to please the prosecutors -- i.e., the lawyer may go easy on the government’s case against the client in hopes that the government will refrain from charging the lawyer or will give the lawyer a favorable plea-bargain.