The Pentagon has reached into the private sector to find an overseer of the Guantánamo war court, selecting one-time FBI lawyer Harvey Rishikof for a job that has been held by retired general officers or lawyers with Department of Defense experience.
Pentagon spokesman Air Force Maj. Ben Sakrisson said Monday that Rishikof “is currently going through the designation process, and that process may conclude in the coming weeks. At that time, he will begin working as the full-time Convening Authority.”
The Convening Authority for military commissions has responsibilities that range from combing through U.S. military officers’ personnel records for jury pools to deciding whether to fund defense staff, travel and experts. The Convening Authority also can negotiate plea agreements with war-on-terror captives at Guantánamo Bay, Cuba, and decide whether the Pentagon prosecution can pursue a death-penalty case.
Rishikof, born in Canada but a U.S. citizen, is currently senior counsel at the Washington, D.C., firm Crowell Moring, whose website describes him as “a sought-after national speaker in the area of cybersecurity and national security.” In the 1990s Rishikof served as administrative assistant to then-U.S. Supreme Court Chief Justice William Rehnquist and was 1997-99 legal counsel to the deputy director of the FBI.
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He has taught law at the National War College in Washington, where he and co-author Nicholas Rostow said military commissions “thus far have proved cumbersome and subject to innumerable legal objections and practical difficulties” in a chapter of a 2015 war college book called “Lessons Encountered: Learning from the Long War.”
Rostow and Rishikof called “still an open legal question” the extent to which Guantánamo detainees get constitutional guarantees. The question arises in pretrial hearings at the base’s crude compound, Camp Justice.
“In the end, the Supreme Court will determine whether, as a matter of U.S. law, military commissions provide adequate due process,” they wrote. “If the court holds that they do, such a result still may not have an impact on international opinion, which seems to have calcified in opposition.”
The lawyers also advised that at Guantánamo the United States has “learned how to build and maintain a first-class detention facility.” It says one subject of controversy is the prison’s “’no-suicide’ policy” that requires 24-hour surveillance of the detainees and to “force-feed them when they go on hunger strikes.”
Rishikof, in his early 60s, did not respond to repeated efforts to reach him. He was chosen during the Obama administration, according to several people with knowledge of the process. But his actual appointment was delayed until Secretary of Defense James Mattis could sign off on it.
Rishikof is known in the legal community as the chair of the advisory committee of the American Bar Association’s Standing Committee on Law and National Security — an entity that national security expert Stephen Vladeck called “a quasi think-tank” on post 9/11 legal issues.
Rishikof is a “smart, thoughtful, and very well respected guy with a whole lot of different experiences,” said Vladeck, a University of Texas law school professor. “He understands how the world works, a pretty useful trait in somebody who’s going to have that position. The question is whether that’s going to be enough.”
That job, for example, has the authority to broker plea deals that include support for serving out a war crimes sentence in another country but not the power to authorize a transfer from Guantánamo prison to make good on the deal. Only the Secretary of Defense can do that.
Disclosure of the selection came days after the chief war court judge, Army Col. James L. Pohl, announced in open court that the Guantánamo infrastructure was inadequate to hold two major trials simultaneously next year.
The chief prosecutor, Army Brig. Gen. Mark Martins, is seeking a June 2018 trial start for the Sept. 11 capital murder case, a five-defendant conspiracy trial. Meantime, the judge in the other death-penalty case, Air Force Col. Vance Spath, announced earlier this month that he’s working toward March 2018 jury selection start in the USS Cole trial of Saudi Abd al Rahim al Nashiri. Jury selection in both cases is expected to last months.
For now, the Pentagon has just one maximum-security, eavesdrop-proof courtroom capable of trying men who spent years in CIA custody. It was built for about $12 million in 2007.
Pohl said the only way to hold two death-penalty trials at the same time would be to swap out cases and judges at Camp Justice after dinner hour. “Saying, ‘Well, we’re going to squeeze you in from 7:00 until midnight because we have not put the resources into building a courtroom,’ takes away from the seriousness of the case,” he said. One death-penalty defender agreed with Pohl that it would be undignified.
“The idea that the 9/11 case would be conducted as ‘night court’ is not consistent with efficiency, effectiveness or dignity,” said Jay Connell, attorney for alleged Sept. 11 plotter Ammar al Baluchi.
Rishikof replaces Acting Deputy Secretary of Defense Robert O. Work in the role. Before, Navy General Counsel Paul Oostburg Sanz held the job as an extra assignment.
Retired Marine Maj. Gen. Vaughn Ary was the last full-time convening authority. He stepped down after an Air Force judge excluded him from handling the USS Cole case over an order he and Work designed to force judges to live at Guantánamo until their cases are complete. Judges in both cases said the rule appeared to unlawfully try to pressure them. Work ultimately retracted the move-in order, and is filling in as the Trump Administration’s first convening authority.
Other people who have held the war court overseer role through the years have included retired Vice Adm. Bruce MacDonald and former military appeals court judge Susan Crawford. The person who held the role, retired Army Maj. Gen. John D. Altenburg Jr., was called Appointing Authority in a George W. Bush era version of the court.