In an about-face, a war court judge said Wednesday that he was still deciding whether to send U.S. Marshals to pick up two civilian defense lawyers who quit the USS Cole case and then ignored a subpoena to appear at the war court.
“I said very clearly yesterday that I want draft options … I haven’t decided yet to issue any writs,” Air Force Col. Vance Spath said at the opening of a third day of a weeklong hearing that has mostly focused on the presentation of evidence to the judge before a jury is seated and the trial begins.
Here is what he told prosecutors Tuesday, according to a court transcript:
“What I would like is some homework overnight. Would you at least craft the two writs. Because I’m going to issue warrants of attachment — I plan to do it tomorrow — to have them brought sometime on Thursday or Friday.
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“Also — again, I don’t know yet. I really do mean I’m going to pause overnight to take some time to work through the different options and to make sure that I am proceeding in a manner that is judicious and fair, and not based on any frustration, because sometimes it is easy to feel some frustration, and I find it’s best to take a pause.”
By late Wednesday afternoon Spath said daily hearing transcripts released by the Pentagon are “unofficial” and warned of the dangers of being imprecise when speaking off the cuff. He said he had yet to decide a way forward on the attorney absence issue. He said he was still “working on options” and had “seven or eight roads ahead.” He did not elaborate.
At issue is Spath’s frustration over repeated refusals by Pentagon-paid attorneys Rosa Eliades and Mary Spears to come to Guantánamo and defend Abd al Rahim al Nashiri, a Saudi accused of orchestrating al-Qaida’s October 2000 bombing that killed 17 U.S. sailors on the USS Cole.
The two women and veteran death-penalty defender Rick Kammen, a Pentagon contractor, left the case last year with permission from Marine Brig. Gen. John Baker, the chief defense counsel of military commissions.
Baker agreed with the three lawyers that they had an ethical conflict: a lack of confidence in the confidentiality of their privileged conversations with Nashiri at Guantánamo. Spath has ruled there is no ethical conflict, and that the three lawyers are still obliged to come to court. He also declared Baker’s release of them “null and void” and found the general in contempt for refusing to change his mind and ordering the trio back on the case.
On Wednesday morning, the judge said the night before he was reading an online military justice blog, CAAFlog, as part of his professional responsibilities and saw a reference to a Miami Herald article about his order to the prosecution to prepare arrest warrants for Eliades and Spears. They had ignored a subpoena to appear before the court by video feed on Tuesday.
Spath said the article misrepresented his request for the writs and left the impression that he was ordering the lawyers forcibly brought to Guantánamo. If he has them seized, he said, they will be brought to war court headquarters in Washington, where the court has a secure video link to the maximum-security court.
That’s what Spath did in October 2016, when he sent U.S. Marshals to pick up a no-show witness in the USS Cole case. Stephen Gill, a demobilized Navy Reserve lawyer, appeared by video in Virginia as a civilian a day after the agents, acting on Spath’s writ, seized him at his home in Massachusetts and held him overnight at an Alexandria County, Virginia, lockup.
Spath also reiterated his remarks from a day earlier that having Eliades and Spears seized could create a conflict that might result in their being removed from the case. He said he was also trying to figure out how to address “lawlessness by one of the communities” that is a party to the case, an apparent reference to the Military Commissions Defense Organization led by Baker.
Spath has repeatedly said that he, as judge, has the sole authority to release an attorney of record in the case, just like in any other court. He was supported in that opinion by Convening Authority Harvey Rishikof, the overseer of war court cases who was abruptly fired Feb. 5.
However, Baker says the war court rules carve out that unusual authority to him, the Chief Defense Counsel for military commissions.
No federal court has weighed in on the question.
But some volunteer civilian defense attorneys are challenging Baker’s contempt conviction in U.S. District Court in Washington, D.C. At the same time, attorneys for resigned learned-counsel Kammen have obtained a restraining order against Spath having him picked up until a federal judge in Indiana examines the issue. Justice Department attorneys are defending the war court in both instances.
In court Tuesday, addressing case prosecutor Army Col. John Wells on the subject of writ preparation, Spath made a suggestion that somebody should contact “Mr. Fox,” an apparent reference to Spears’ and Eliades’ attorney, Brandon Fox.
“Please communicate this to Mr. Fox tonight. If I was going — I’m not giving advice. But if I were to be going to federal court, I would go soon,” the judge said.
Prosecutor Wells: “Yes, sir.”
Spath: “That’s what I would do, if I was hoping to get some kind of stay. And I would reference what occurred with another witness in New York recently. Go to another district, might get another answer, right? But there are some things I would communicate to Mr. Fox. I’ll leave that to you.
“If you all would draft the needed documents, I will try to let you know as soon as I can what the road is. But I want my options available so when we get here tomorrow we have time to assist them in getting to the commissions to tell me what their good cause is. OK.”