The lone lawyer for the man accused of orchestrating the 2000 bombing of the USS Cole warship off Yemen is asking a war court review panel to stay out of a judge’s decision to halt the proceedings.
Navy Lt. Alaric Piette argues in his Feb. 28 brief that the U.S. Court of Military Commissions Review cannot review a decision to suspend a trial through abatement, only a dismissal of the charges, something Judge Air Force Col. Vance Spath chose not to do when he stopped the proceedings on Feb. 16.
“The military judge’s abatement … did not terminate proceedings,” Piette wrote in a 10-page petition obtained by the Miami Herald. He cast Spath’s suspension as a “prudent step” to ensure that alleged USS Cole bomber Abd al Rahim al Nashiri “has capitally-qualified learned counsel before he stands trial in a capital case.”
The Saudi, who was captured in 2002, is accused of engineering al-Qaida’s Oct. 12, 2000, suicide bombing of the warship off Yemen that killed 17 U.S. sailors. He was brought to Guantánamo in 2006 and arraigned in 2011.
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The case has been mostly deadlocked since veteran criminal defense attorney Rick Kammen, an American Bar Association recognized death-penalty lawyer, quit the case on Oct. 13 along with two other Pentagon-paid civilian defense attorneys. The three got an ethics opinion saying that they had to resign over their belief, based on something classified, that their confidential attorney-client conversations were compromised.
As he halted the trial, Spath offered a recitation of his frustrations and said that he was looking for guidance from a superior court on how to proceed in the absence of a death-penalty defender and defiance by what he calls the Pentagon “defense community” over his orders to reinstate resigned lawyers.
Piette’s filing noted that the judge ordered the Pentagon to recall to service a reserve Navy lawyer, and argued that process should be allowed to happen. He cast the essence of the issue confronting Spath as his desire to make sure Nashiri has an “adequately resourced defense.”
Piette has consistently argued that he, a 2012 Georgetown Law School graduate with no death-penalty experience, is not qualified to represent Nashiri in court. At the same time, Piette’s supervisor, Army Col. Wayne Aaron, has found a private sector attorney willing to serve as a death-penalty defense attorney, a learned counsel. That lawyer has not been identified.
Prosecutors have not yet outlined their theory of how the Pentagon panel, which is designed primarily to review war court convictions, could overrule a judge’s decision to abate. But a filing by prosecutors seeking permission to exceed the court’s 14,000-word limit and instead submit a 21,500-word brief suggests that war court prosecutors may be asking the review panel to decide a series of cascading questions that stymied Spath’s ability to get the trial back on track.
Those include a war court judge’s contempt authority; his ability to compel a Pentagon employee to come to Guantánamo, if only by video link; and an overarching question of whether the Chief Defense Counsel or a judge has the unilateral authority to release a lawyer from a war court case.
Kammen, Rosa Eliades and Mary Spears all quit the case with permission of Marine Brig. Gen. John Baker, the Chief Defense Counsel, whom the judge subsequently sentenced to 21 days confinement for refusing to order them to return to the court.