Lawyers for the alleged USS Cole bombing mastermind quit the capital case after discovering a microphone in their special client meeting room and were denied the opportunity to either talk about or investigate it, the Miami Herald has learned.
The narrative, contained in a 15-page prosecution filing obtained by the Herald, is the first authoritative description of the episode that caused three civilian defense attorneys to resign from the death-penalty case of Abd al Rahim al Nashiri on ethical grounds: Rick Kammen, a seasoned death-penalty defender, and Rosa Eliades and Mary Spears. In fact, the prosecution says the listening device that lawyers discovered in an early August inspection of their special meeting room was a legacy of past interrogations — and, across 50 days of ostensibly confidential attorney-client meetings, was never turned on.
The description, an eight-paragraph, declassified version of something the public was not allowed to know until this week, was contained in a prosecution filing at the U.S. Court of Military Commissions Review signed by the chief prosecutor for military commissions, Army Brig. Gen. Mark Martins, and three appellate lawyers on his staff.
It says that, after the three lawyers quit the case in October, prison workers “removed flooring, walls, and fixtures” in an attorney-client meeting site exclusively used by Nashiri and his lawyers and “confirmed that legacy microphones, which were not connected to any audio listening/recording device nor in an operable condition, were removed.”
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The court filing is an attempt by prosecutors in the USS Cole case to get the review panel to order a military judge to resume the case. Nashiri, a Saudi, is charged with engineering al-Qaida’s suicide bombing of the warship off the Yemen post of Aden on Oct. 12, 2000. Seventeen U.S. sailors died in the blast, and the prosecutor is seeking a death sentence. Air Force Col. Vance Spath, the judge, abruptly abated the case Feb. 16, saying he wanted a higher court to clarify his authority as a judge in the Guantánamo war court.
Kammen, reached by the Herald, called the prosecution account “outrageous” and “really grotesque selective declassification” designed to permit “some portion of the truth to seep out, but only in ways that the government feels will help it.”
At the time of their resignations, Kammen said he was only allowed to say that something had occurred, which he could not describe; that he sought discovery from the judge in order to investigate the episode as well as a hearing, and the requests were denied it. The judge’s denial is classified.
“Our concerns were much greater than what they appear to admit was there,” he said. He added, however, that even the portion the prosecution now permits the public to know “demonstrates that either Colonel Spath was lied to by the government or in many of his statements he was lying to the public, the press and the victims in a way that was absolutely shameful and disgraceful — by casting it as fake news.”
The prosecution filing casts the judge as having experienced a crisis of conscience over his inability to manage his way out of a situation where defense lawyers — whose resignations he does not recognize — refuse to honor his orders to appear in court. On Nov. 1, Spath ordered the chief defense counsel, Marine Brig. Gen. John Baker, to reinstate the three civilian, Pentagon-paid lawyers to the case, and then found Baker in contempt of court when he refused.
It adopts the judge’s language that the standoff was the result of a “strategy” by the Military Commissions Defense Organization, Baker’s Pentagon’s office of war court defense lawyers, to create a “triumphant stalemate” that “has proven destructive of the rule of law.”
It succeeded, the prosecution brief says, in “so handcuffing and frustrating the military judge that he has indefinitely abated the proceedings below and is contemplating retirement from active military service because of his shaken faith in the law and what it means to be a lawyer.”
In a 20-minute monologue Feb. 16, Spath said he was halting the trial after a sleepless night, pending guidance from a higher court on his authority, and was considering retiring from the Air Force altogether. He acknowledged that there were times when a member of the military could refuse a direct order — omitting the fact that the trio of lawyers defying him were civilians — but said that occurs under extraordinary circumstances such as the genocide of the Third Reich in World War II or the My Lai massacre in the Vietnam war.
War court watchers wondered why the discovery was considered a national security secret in the first place.
“If this really was an innocuous slip-up with unplugged microphones, why has the government apparently tried so hard to cover it up?” Stephen Vladeck, a University of Texas law professor, told the Herald.
Vladeck also said the disclosure “calls into serious question the legal ruling at the bottom of this dispute, in which Judge Spath concluded that there was no impermissible interference with the relationship between the defense attorneys and their client.”
Kammen said this week he was still bound by his understandings of what was classified at the time he resigned to not say what is missing in the prosecution account. One thing people with war court security clearances were told at the time, according to two defense attorneys who declined to be named, was that they were forbidden to say the word “microphone.” Other words were declared taboo in discussing attorney-client meeting sites, the lawyers said, declining to say the words because they may still be classified.
“It’s good to see the truth beginning to come out,” Kammen said. “But the reality is more than what they’ve declassified.”
Nashiri met his lawyers in a different site, inside the mostly abandoned Camp Delta, rather than the routine attorney-meeting site at Camp Echo down the road at the request of his defense lawyers. The prosecution filing does not identify the Camp Delta portion but says that it was part of a “re-purposing” of existing structures that as late as 2011 had been used “for interviews of general-population” detainees. “Interviews” are at times a war court euphemism for interrogations.
The prison kept logs of Nashiri’s meetings with his lawyers at Camp Delta, the prosecutors said, and counted that they met there for more than 50 days from April 2014 to the summer of 2017, but the “legacy microphones” were disconnected and “never in use during these meetings,” the filing says.