In a new test of the reach of the Guantánamo war court, a military judge has ordered three civilian lawyers who quit the USS Cole defense team to come to court at the remote U.S. Navy base in Cuba next week.
Attorneys Rick Kammen, Rosa Eliades and Mary Spears quit their jobs on Oct. 11 as lawyers for the man accused of orchestrating al-Qaida’s warship attack. They obtained permission to do so from the chief defense counsel, Marine Brig. Gen. John Baker, who found “good cause” for their resignations. They cited a cascading ethical conflict over a lack of confidence in the confidentiality of their privileged conversations with Abd al Rahim al Nashiri at Guantánamo, but the details are classified.
But the case judge, Air Force Col. Vance Spath, wrote in an Oct. 16 order that, while Baker “purported to find good cause” to approve their leaving the case, Spath, as judge, has not. “Accordingly, Mr. Kammen, Ms. Eliades, and Ms. Spears remain counsel of record in this case, and are ordered to appear at the next scheduled hearing,” Spath wrote.
At issue is whether Baker or Spath has the authority to excuse the three civilian lawyers from the case. The war court judge’s bench book, called the Trial Judiciary Rules of Court, says once a civilian lawyer has appeared in court, “excusal must be approved by the military judge.”
But the Manual for Military Commissions, from which the rules are drawn, says the authority who appointed the lawyer gets to excuse the lawyer for good cause.
Nashiri, 52, allegedly ran al-Qaida’s Oct. 12, 2000 suicide bombing of the warship off Yemen that killed 17 U.S. sailors, and wounded dozens of others. He could face military execution, if convicted. Kammen has represented Nashiri as his death-penalty defender since before the Saudi’s arraignment in 2011.
The order has raised a series of questions that include who has the authority to relieve a civilian defense attorney of record and whether the judge can enforce his order for civilian lawyers he has not released from a case to come to Guantánamo.
In the case of a witness who ignored a subpoena a year ago, the judge dispatched U.S. marshals to the man’s Massachusetts home to take him into custody. That witness, also a lawyer who had done work for the war court, was jailed for a night, brought to a video-feed site in Virginia and then released after his testimony. Before it happened, in a courtroom discussion of a war court’s authority to compel a witness, lead prosecutor Mark Miller replied: “I think we all agree that we cannot force somebody to come to the island.”
In civilian courts, said Duke law professor Madeline Morris, a lawyer needs a judge’s permission to resign. “You can’t very well run a system with counsel of record who just disappear from a case without the judge having any control of that happening,” she said.
But if the defense attorneys don’t board a plane to Guantánamo, believing they have been released, it is unclear whether anybody has the authority to order them put on a plane and sent to the U.S. Navy base in southeast Cuba. Spath may have contempt power to find them in violation of a court order, Morris said, but even that would involve a multistep process and be punishable by at most 30 days in a brig or jail and a $1,000 fine.
A former attorney who worked at the commissions, Bobby Don Gifford, said a judge may also file a bar complaint with that lawyer’s licensing authority, or a state bar, asserting professional misconduct for failing to show up in court. “I’ve seen it in both federal court and state court.”
Morris, who has advised defense teams, cast the “underlying question” raised by Spath’s order to the Nashiri defense team as “Who’s in charge and who gets to decide what is and is not the law for these commissions. You’ve got attorneys saying, ‘I believe I’ve been released.’ You’ve got the chief defense attorney saying, ‘I have released them.’ You’ve got a judge saying, ‘I don’t believe it works that way.’ Who decides? Is it a federal court? At what juncture?”
Nashiri has one military lawyer, Navy Lt. Alaric Piette, a former Navy SEAL. He said Monday he’s not qualified to serve as a death-penalty defender, or learned counsel as they are known. Another military lawyer, Air Force Maj. Brett Robinson, recently obtained a security clearance to sit inside the maximum-security courtroom but has yet to meet with Nashiri, or be accepted by him. Baker has assigned two other military attorneys to the case but both await security clearances.