The judge in the USS Cole terrorism case ordered prosecutors Tuesday to draft warrants instructing U.S. Marshals to seize two civilian defense attorneys who have quit the case and ignored his orders and a subpoena to appear at the war court by video link.
Air Force Col. Vance Spath, the judge, said he would sign the “writs of attachment” on Wednesday and cautioned from the bench that the lawyer for Pentagon-paid attorneys Rosa Eliades and Mary Spears should hustle to federal court, if the lawyer wants to stop what are essentially arrest warrants.
Eliades and Spears quit the case in October, along with death-penalty lawyer Rick Kammen, over an ethics issue involving intrusion of attorney-client confidentiality, which the judge does not recognize. The three were released from the case by the chief defense counsel, Marine Brig. Gen. John Baker. When Baker refused to rescind that permission on Nov. 1, the judge found Baker in contempt of court and sentenced him to 21 days confinement in his quarters.
Unlike Kammen, who was a defense attorney by contract, Eliades and Spears are full-time employees in Baker’s military commissions defense office. Spears has been acting general counsel and Eliades is on an unspecified special project. In addition, Kammen in November had obtained a federal court restraining order protecting him from a forced appearance at the war court.
Spath had U.S. Marshals seize a no-show witness before, in October 2016, and brought to a video site in Washington, D.C. Marshals seized a man named Stephen Gill from Gill’s home in Massachusetts, held him overnight in a Virginia jail, and delivered him to war court headquarters. Spath also forbade anyone from telling Gill until after he testified that a federal public defender had offered to represent him.
The judge had earlier Tuesday expressed a reluctance to have the women seized. He said in court that their arrests could cause them to lose their security clearances and jobs with the Department of Defense and thwart his goal of having them return to the defense team of Abd al Rahim al Nashiri.
The Saudi, a former CIA prisoner, is awaiting a death-penalty trial as the alleged mastermind of al-Qaida’s Oct. 12, 2000, USS Cole bombing. Seventeen sailors died in the attack.
The resignations have left Nashiri without a defense attorney with expertise in capital punishment cases, a learned counsel. Spath has alternately said that, since he didn’t approve Kammen’s resignation, the learned counsel is still on the case but refusing to appear — or that a Navy lieutenant with no death-penalty defense experience is qualified to handle the case.
That lawyer, Navy Lt. Alaric Piette, has sat in court through a series of hearings refusing to participate until a learned counsel arrives. In court Tuesday, case prosecutor Mark Miller called a series of FBI agents to describe how they gathered trial evidence in Yemen in the aftermath of the 2000 bombing: They arrived at suspected safe houses that had been searched by Yemeni forces, who took pictures, seized evidence and then, on second thought, returned items to the buildings.
Former FBI agent Steven Krueger described that search as unusual. It began, he said, with a Yemeni brigadier general introducing himself, taking the agent by the hand, leading him inside and pointing to a blue tissue paper with a substance on it and declaring, “there’s your evidence.”
For this week’s hearing, the judge had prosecutors swear out subpoenas for Eliades and Spears to come to Military Commissions headquarters in Virginia on Tuesday and explain their positions by a video link to Camp Justice here. Their lawyer, Brandon Fox, filed a motion with the court to quash the appearance orders because the two women have been released from the case. Spath refused to accept the filing on Monday, and then denied an earlier effort to quash the subpoenas.
The two women did not show up at the headquarters on Tuesday.
Spath has declared Baker’s decision to release them “null and void” and said at the conclusion of court Tuesday that he was compelling their attendance to “assist them in getting to the commissions so they can tell what their good cause is” for quitting.
On Monday, the judge said he was weighing his options and still hoping that someone else at the Department of Defense would order the civilian lawyers to appear, for example their supervising attorney, Army Col. Wayne Aaron.
“There’s a number of employment-related legal issues that greatly complicate the simplistic approach that I can simply order them to be here,” Aaron told the judge, “and the concept that my order would have any significance, whatsoever, on their intention of what to do.”
Spath said he had been studying the court-martial case of Army Maj. Nidal Hasan as he considered his way forward on what he considers to be renegade resignations. The Army psychiatrist in 2009 went on a shooting rampage at Fort Hood, killing 13 people and wounding dozens of others.
Hasan was convicted and sentenced to death. But first the original judge was removed from the case because, as Spath noted, he chose to “take on a battle that was not his” — ordering the Army to shave off the major’s beard for trial.
“The court must remain neutral, detached and objective,” a case prosecutor, Army Col. John Wells, counseled the judge on Monday, suggesting there was a process that could be pursued to deal with the absence of the two attorneys through Pentagon channels.
On Tuesday, when Spath ordered the prosecution to draft the warrants, Wells replied: “We will move forward.”
This story has been updated to reflect that the civilians compelled to appear at the war court would do so by video link from war court headquarters in Washington, D.C.