Via Jonathan Turley, counsel for a Gitmo defendant has raised a very curious issue, and engaged in what may be a dangerous tactic, by wearing a hijab before the military tribunal and requesting an order requiring other women do so as well.

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.

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.”

Turley makes clear that, as much as he considers the military tribunal illegitimate, he considers this “a professional and tactical mistake” and disapproves of this “extreme accommodation.”  

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.

While this is certainly true, and a point that I’ve emphasized in the past in contrast to some lawyers whose emotional investment in a case impairs their professional detachment, I’m not entirely sure that Bormann’s choice, and bearing in mind that it’s entirely Bormann’s choice as no one is forcing her to don a hijab, isn’t quite a shrewd tactical move.



In essence, she has made herself into a walking witness for a critical aspect of the case, that her client’s perspective, his universal view if you will, isn’t that of a mall rat from Jersey, but of a Muslim.  Her attire is demonstrative evidence, and an ever-present reminder, that the trial reflects a cultural clash of massive proportions.  Americans have a particularly difficult time comprehending that our sensibilities aren’t shared by everyone else.  The hijab shows otherwise.

This isn’t to say that Bormann had any obligation to dress herself in a way that better suited her client’s religious beliefs.  As for his ability to “focus” without averting his eyes from his hot American lawyer, that’s hardly Bormann’s problem, or anyone else in the courtroom.  Regardless of whether he stands trial in Gitmo or the Southern District of New York, there was little expectation that it would reflect Muslim culture and religion. 

To a small extent, Bormann’s choice may present an issue as to whether she’s been coopted by radical Islam, wearing the hijab as a reflection of her own religious and political conversion.  Her credibility as counsel is a critical component of her effectiveness, and if the hijab gets in the way of her being taken seriously, then the tactic of being walking evidence is severely undermined.  It’s a risky move, for sure.

At the same time, her credibility as counsel will be based far more on what comes out of her mouth than what she wears on her head.  The hijab will fade into the background soon enough, as everyone gets used to seeing her attire, and then it will be up to her to provide the substance needed to defend her client.

The request that the tribunal order other women to wear a hijab out of respect for her client’s sensibilities, however. strikes me as a step over the line, both professionally and tactically.  That Bormann has chosen to do so is her choice. 

There’s a huge difference between making a voluntary decision and trying to ram it down other’s throats.  They tend not to take kindly to such efforts, and the argument in support, that an American tribunal (or courtroom) should remake itself to meet a defendant’s religious sensibilities.  It’s not just the fact that it’s a losing argument, but that it borders on ridiculous.

Orthogonally, Turley makes clear his objection to defendant’s being tried by Gitmo tribunals, which is clearly understandable from a doctrinal perspective.  And a while back, it wouldn’t have dawned upon me to question this.  But having learned a great deal from Eric Mayer’s  Unwashed Advocate (formerly Military Underdog), the seeds of doubt have been sown. 

There’s something to be said about a tribunal with so firmly entrenched a sense of honor that it isn’t necessarily trumped by outcome which makes me wonder whether, on a very practical level, the defendant doesn’t stand a better chance before a military tribunal than before a federal judge sitting in an American courthouse.  It’s not that the former is immune to bias, but that the latter is as well and lacks indoctrination in a culture where honor compels the trier of fact to make the hardest choices rather than the expedient ones.

This isn’t to suggest that the military tribunals in Gitmo are the proper way to go, or that this is a legally justifiable choice.  Rather, just a reflection of doubt about our legal systems strength of will when it comes to providing fundamental fairness to so hated a defendant.  Given the struggle to obtain due process and a fair hearing for the “ordinary” defendant, it’s hard to believe that alleged enemies of our nation will be given much of a chance at experiencing the greatest legal system there is (if we do say so ourselves).