The death-penalty attorney who quit the USS Cole case over a secret ethical dilemma said Thursday that he and his colleagues will for a second time defy the military judge’s order to appear in court.
“Nobody’s going,” attorney Rick Kammen told the Miami Herald on the eve of a 9 a.m. hearing Friday in which judge Air Force Col. Vance Spath has ordered the Indiana lawyer and two civilian colleagues to appear by teleconference from war court headquarters in Virginia.
Kammen, Rosa Eliades and Mary Spears until last month willingly defended Abd al Rahim al Nashiri, who is accused of plotting al-Qaida’s suicide bombing of the warship off Aden, Yemen, in October 2000. Seventeen U.S. sailors died in the attack, and Nashiri could face execution if he’s convicted.
Then they quit, with permission of the chief defense counsel for military commissions, Marine Brig. Gen. John Baker. Spath rejected that, saying that only he has the power to excuse an attorney of record in his court, and ordered them to come to Guantánamo Sunday and litigate. They did not.
So Wednesday he found the general in contempt of court for sanctioning their resignations, refusing to testify about it and refusing to rescind his decision to let the lawyers go. Spath then sentenced him to 21 days confinement in his quarters — in a trailer behind the courtroom complex called Camp Justice, required to call in to Navy police every two hours from 6 a.m. to 10 p.m.
Thursday, as civilian lawyers voluntarily representing Baker were in federal court in Washington, D.C., arguing for the general’s release on grounds of unlawful detention, Kammen revealed that he and his colleagues had rejected the judge’s order to appear Friday morning.
“Based on the advice of my lawyers, their analysis of the law and our analysis of the circumstances we’d be facing in Virginia, we made the decision that we would not go,” Kammen said. Instead, he said attorneys for the attorneys had filed “appropriate pleadings” — preemptive habeas corpus petitions, essentially — in different federal districts, where each is a member of the Bar, in a bid to stave off arrest.
A year ago, when a subpoenaed witness named Stephen Gill failed to testify in the Nashiri case, Spath dispatched U.S. Marshals to seize Gill in his home in Massachusetts. He was held in lock up in Virginia overnight and delivered to the same site for a video link to the war court as was being activated Friday for the resigned defense counsels.
The heart of the issue for Spath is how to resume pretrial hearings in light of the collapse of the Nashiri defense team. Only Navy Lt. Alaric Piette, a 2012 graduate of Georgetown Law School, came to Guantánamo as Nashiri’s lawyer this week — and he has said he is ethically bound to do nothing in court because the man awaiting a capital trial currently has no qualified death-penalty defense lawyer.
But the underlying issue is the belief of Kammen and the others that they cannot ethically defend Nashiri because of a covert breach of attorney-client privilege involving something so secretive at the terror prison that neither the client nor the public can know what it is.
Spath does not agree with the general and the lawyers that they have an ethical obligation to leave the case. Prosecutors earlier this week urged the judge to find the civilians in contempt of the war court, accusing them of adopting a “scorched-earth strategy” and wielding “a manipulative monkey wrench.”
In the first of two separate hearings in Washington on Thursday, U.S. District Court Judge Royce Lamberth refused to halt Friday’s hearing because of the lack of a counsel experienced in the practice of capital punishment defense, known as a learned counsel.
Michel Paradis, a civilian appellate lawyer who works for Baker, argued that the USS Cole case has “gone off the rails” and described the trial process as “lawless.”
Justice Department attorney Ronald Wiltsie argued there would be no harm in the trial proceeding. “While the government has an interest in ensuring that the proceedings at Guantánamo are fair, that interest is not compelling enough” to stop, Wiltsie said.
Then, later in the day Lamberth heard from a pro-bono defense team deployed by the National Association of Criminal Defense Lawyers who argued Baker’s detention was unlawful and sought his release.
They had filed a 20-page habeas corpus petition earlier in the day accusing the judge and Secretary of Defense Jim Mattis of illegally denying Baker “due process rights by depriving him of his liberty without giving him any opportunity to be heard.” Spath silenced Baker in court on Wednesday, ordered him to sit down and then declared him summarily guilty of contempt of court on two counts.
Justice Department attorney Terry Henry sought more time from Lamberth, repeatedly reminding him that the petition had just been filed hours before. He also suggested that the general should pursue other avenues of appeal before taking the extraordinary measure of going to federal court. The appellate panel for the war court is the Pentagon-run U.S. Court of Military Commissions Review.
“So you’re saying I shouldn’t act, even though I have jurisdiction to act, until he has taken every extraordinary option available to him?” Lamberth asked. Henry agreed with that characterization.
Lamberth made no decision, and recessed until Friday afternoon.
Kammen said that his attorneys had already filed a similar habeas corpus petition in U.S. District Court in Indianapolis, where Kammen has a law practice, asking a federal judge there to intervene “to prohibit his unlawful detention,” even before he failed to show up in court. He said his colleagues, Eliades and Spears, had similar filings in their jurisdictions, believed to be in Chicago and the Washington, D.C., area.
Kammen, the petition noted, “has not been charged with a crime and Col. Spath lacks statutory authority to order his appearance under these circumstances.”
The three are civilians, and while it appears Spath may have no authority to have them forced to go to Guantánamo, the lawyers look at Spath’s decision last year to have U.S. Marshals force the Massachusetts man to testify in Virginia as a likely template for what Spath would attempt to do Friday.
Spath’s order to Kammen, Eliades and Spears to go to the Virginia site noted: “Failure to comply with this order may constitute contempt upon these proceedings as well as another voluntary absence by counsel of record.”
Nashiri, meantime, remains at the terror prison in his 15th year of U.S. custody. He was captured in 2002 and sent to the CIA’s secret prison network until his transfer to Guantánamo in 2006. He was arraigned in this terror case in 2011 and has been in pretrial proceedings ever since — defended by Kammen and a series of military defense attorneys on temporary assignment to the case.
McClatchy correspondent Kate Irby reported from Washington, D.C.