Bahlul Counsel Surreply on Viability of Representation

The saga of whether Ali Hamza Ahmad Suliman Al Bahlul's counsel rightly represents him before the D.C. Circuit in his military commissions appeal continues. The government, you'll recall from prior coverage, has challenged whether the Al Bahlul had really authorized the appeal--arguing that there was evidence that he specifically did the opposite and that the appeal should thus be dismissed. His lawyers responded that the facts the government alleges do not justify disqualifying counsel or dismissing the appeal. The government filed a reply brief. And now, Al Bahlul's lawyers have filed a surreply, arguing as follows:

In our response to the government’s motion, we laid out why what the government is seeking in its motion shifts the burden to Mr. Bahlul to demonstrate that he has not waived his appellate rights. We further demonstrated why such burden shifting is inconsistent with Congress’ regulatory scheme for the handling of direct appeals as well as the standard presumptions that govern direct appeals in the federal and military justice systems. Most of the facts that the government has put forward to trigger this burden shifting occurred years ago and never before gave rise to any concerns about our representational authority. The government’s Reply repeatedly complains that as counsel for Mr. Bahlul, our response did not bring forth facts to rebut its characterization of Mr. Bahlul’s behavior over the past three years. But providing the information the government claims we should have included in our Response would have necessarily required the disclosure of attorney-client confidential information. Absent a court order, such disclosures are inappropriate. We therefore could not offer a factual rebuttal in our response and believe that the government has not offered the substantial proof required to compel us to do so. If this Court is troubled by the implication of the government’s motion or otherwise believes it is helpful to its resolution of this issue, however, we have filed a declaration from Michel Paradis. We have filed it ex parte and in camera, based upon an internal review within the Office of the Chief Defense Counsel to ensure that its content is appropriate to the allegations and our professional responsibilities to Mr. Bahlul. We are making it available so that this Court does not misconstrue our silence as acceptance. As stated in our response, Mr. Bahlul is a criminal defendant with a right to direct review by the C.M.C.R. and this Court. He has a right to appeal that he has not waived either previously or now. With the benefit of a fuller view of the facts, which the government has no entitlement to, we are confident that we are proceeding pursuant to a good faith understanding of his wishes. The motion should be denied.