In rapid succession Tuesday, a Marine general refused to testify and refused to rescind an order releasing three civilian defense lawyers, a Navy defense attorney refused to file pleadings and a military judge scheduled a contempt hearing in the USS Cole death-penalty case.
All were firsts at the war court created after the Sept. 11 attacks to handle national security cases, as judge Air Force Col. Vance Spath sought to stabilize a collapsed defense team in the case against Abd al Rahim al Nashiri. The 52-year-old Saudi is accused of orchestrating al-Qaida’s Oct. 12, 2000 warship bombing that killed 17 U.S. sailors, and could be executed if convicted.
The issue of the moment was how to continue pretrial hearings in the absence of a criminal defense attorney with death-penalty experience. Although by law a capital case requires a so-called learned counsel, Spath concluded the case could go forward because one wasn’t available.
But the larger drama was driven by a decision by three civilian attorneys to quit the case over a secret ethical issue involving, they say, compromised attorney-client privacy at the war-on-terror prison where the alleged terrorists are held.
The chief defense counsel, Marine Brig. Gen. John Baker, released attorneys Rick Kammen, Rosa Eliades and Mary Spears from the case in mid-October based on secret information the public cannot know. Spath ruled that only a judge, not Baker, had the authority to excuse lawyers of record — and ordered the general to swear an oath and answer questions about the episode.
Baker stood three rows behind the defendant and refused, invoking a privilege.
The judge then ordered the general to rescind his decision to excuse the three lawyers. “I’m definitely not doing that,” the Marine general replied. Baker maintains that under the war court rule book he has the unchecked authority to release defense attorneys for “good cause.”
Spath next turned to Nashiri’s only remaining attorney of record on the case, Navy Lt. Alaric Piette, and ordered him to fill the void by filing legal pleadings and participating in the questioning of an unidentified witness due in court later in the week. “If I’m wrong, your client can get a windfall because I’ve ordered to go forward without learned counsel,” Spath said, adding, “learned counsel are not practicable in the near term, if ever, by the actions of General Baker.”
Piette, a former Navy SEAL and 2012 Georgetown Law graduate, declared himself willing to defend Nashiri but unable to do so without a death-penalty defender. “What I am not going to do is make any more pleadings,” the lieutenant said, “because I see the slippery slope.”
Spath also ordered Baker to order Eliades and Spears, both on his Military Commissions defense staff, to get to Guantánamo for a contempt hearing scheduled for noon Wednesday. He told Baker to urge Kammen to come, too.
Spath’s morning hearing mostly followed the script of a 22-page pleading filed by prosecutors a day earlier on how to move forward. They accused the defense team of adopting a “scorched-earth strategy,” and called their request to stop until a new death-penalty defender is on the case “a manipulative monkey wrench.”
The filing signed by the civilian lead prosecutor Mark Miller recommended that Spath order Baker to testify to build a record, set a 24-hour time limit for the resigned lawyers to appear, hold a contempt hearing and move on to taking court testimony.
Throughout it all, the Saudi captive who was held for four years by the CIA sat silently at the defense table in the rumpled white scrubs-style prison uniform of a Guantánamo captive.
The hearing lasted about an hour, including a 15-minute recess, and began with Spath advising Nashiri that he needed to be present for possible contempt proceedings.
The judge also obliquely mentioned the Top Secret ethical issue that drove the defense team to resign, saying the prosecution had voluntarily described an episode involving another detainee and other defense attorneys, not those in the Cole case.
Spath said he denied a request by Kammen to brief Nashiri about the problem, apparently in order to obtain a waiver of attorney-client confidentiality, because “I am statutorily prohibited from ordering the disclosure of classified information, which everyone knows.” And he said he denied a defense request to get more information about the issue because it had no ties to the Cole case.
A judge’s contempt authority at the war court, as spelled out in the rules, covers actual disruptions at court and can be punished by 30 days in a prison or brig and a $1,000 fine. Under the rules, a person found in contempt has an opportunity to appeal the finding to the overseer of military commissions, called the Convening Authority.
But the chief prosecutor, Army Brig. Gen. Mark Martins, put his defense counterpart, Baker, on notice in a Saturday afternoon email that Martins considered failure to appear a “very real disturbance and disorder to the military commission’s proceedings.”
Yet to be seen is whether Piette’s refusing to litigate in the absence of a capital case qualified defender is contempt.
Throughout the quick hearing, the judge also repeatedly suggested that, if the Military Commissions Defense Organization led by Baker disagreed with the various authorities Spath invoked in court, they should seek swift review by the U.S. Court of Military Commissions Review, the Pentagon-run appeals court for war court cases.
Here is a link to the hearing transcript, released by the Office of Military Commissions