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SAN FRANCISCO-Two military lawyers defending Guant�namo Bay detainees have sought their own private lawyers in a looming ethical fight over the right of detainees to self-representation and to refuse appointed counsel. “This is a ‘damned if I do, damned if I don’t’ situation,” said Major Tom Fleener, a defense lawyer in the U.S. Army Reserves Judge Advocate General’s Corps and one of a dozen lawyers in the Office of Military Commissions assigned to defend detainees. Fleener, licensed in Wyoming and Iowa, and Navy Lieutenant Commander William Kuebler, licensed in California, both have clients who refuse their help, but both lawyers are under military orders to provide a defense, placing them in conflict with state bar ethics rules. “It is not ethical to represent someone against their will,” said Fleener. He and Kuebler face potential violation of ethics rules if they proceed against their clients’ wishes, or a court-martial and even dishonorable discharge if they refuse to follow orders. Fleener’s client, Ali Hamza Ahmad Sulayman al Bahlul, has made it clear since 2004 that he does not want Fleener’s help and seeks to defend himself against charges that he joined al-Queda in 1999 and created instructional videos for the group. But revised military tribunal rules required representation of defendants. Concerns raised in ’04 Al Bahlul allegedly worked in the media office, assigned by Osama bin Laden. He has a master’s degree in engineering, a good grasp of English and he chooses to represent himself, said Deborah Patalkis, of the Washington office of Philadelphia’s Drinker Biddle & Reath, head of the Washington pro bono team representing Fleener on the ethics questions. “Both [Fleener and Kuebler] are young guys looking forward to private careers and they are caught in a ‘Catch-22′ situation,” she said. Fleener raised the ethics problem in 2004 when al Bahlul refused help. But the issue was not joined because the U.S. Supreme Court’s review of the Hamdan case put the other cases on hold. In Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006), a 5-3 Supreme Court majority held that the military commission established by President Bush to try enemy combatants violated federal law and the four Geneva Conventions. At press time, differences in the Senate- and House-approved versions of the military commission rules had to be reconciled. Self-representation is not included in the House version. Fleener and Kuebler fear the limitation on self-representation may remain. The House version states the accused “shall receive the assistance of counsel.” “That looks a lot like the old military instruction,” said Kuebler. Fleener said he fears there is a move afoot to create a hybrid representation system, something beyond standby counsel. The hybrid would limit the detainee’s self-representation in court and specify the role of the lawyer. Much of this will have to wait 90 days while the secretary of defense develops the specific rules to carry out the legislation, said Fleener. A 31-year-old Supreme Court decision recognized the right of defendants to represent themselves and refuse the aid of a lawyer. The only question is whether defendants are competent to make that decision, and not the potential quality of the self-representation. Faretta v. California, 422 U.S. 806 (1975). Kuebler, who is represented by Anthony Epstein of Washington’s Steptoe & Johnson, said: “The ability to waive counsel is critical. It is hard enough, given who we are and who the defendants are, to develop a relationship of trust. I am a uniformed military officer. It is difficult to gain trust. If that is compounded with forced representation, in the words of Faretta, it ‘can only lead him to believe that the law contrives against him,’ ” Kuebler said. Fleener said that the military prosecutors on the other side of the question joined him in support of extending a right of self-representation. Protecting classified national security material in cases where suspected al-Queda members defend themselves can be provided for under current military standards, said Fleener. It is possible to provide detainees the unclassified summaries or redacted portions of evidence that is also given to the jury, he said. The Pentagon’s public relations office did not respond to a request seeking comment.

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