Captive, judge oddly agree neither can force lawyer to go to Guantánamo

Saudi Abd al Rahim al Nashiri during his military commissions arraignment at the Guantánamo detention center on Nov. 9, 2011.
Saudi Abd al Rahim al Nashiri during his military commissions arraignment at the Guantánamo detention center on Nov. 9, 2011. ASSOCIATED PRESS

A war court judge capped three weeks of hearings trying to resolve a stalemate over a resigned civilian defense team Friday by asking the alleged mastermind of the USS Cole bombing whether he wanted his long-serving capital defense counsel to return to court.

“I believe he chose to leave this case, and I support him,” Saudi Abd al Rahim al Nashiri said. His death-penalty defense lawyer, Rick Kammen, quit the case because of a secret ethics issue and has twice in recent weeks defied the judge’s order to come to Guantánamo and litigate.

Air Force Col. Vance Spath.

Air Force Col. Vance Spath, the judge, made clear that the decision of whether Kammen and co-counsel Rosa Eliades and Mary Spears would be relieved was not Nashiri’s. Spath framed it as only seeking input from the man awaiting a death-penalty trial for allegedly orchestrating the Oct. 12, 2000, attack on the warship off Aden, Yemen, that killed 17 American sailors.

“All the attorneys are free to have their own opinion, and I support them. In other words, I cannot force anyone to come here,” Nashiri told the judge.

“Clearly, neither can I,” Spath replied.

The defiance has presented a challenge to the authority of the judge, who in a moment of high drama sentenced the Marine general in charge of defense teams to 21 days confinement for refusing to return the three lawyers to the case. Marine Brig. Gen. John Baker is now free, pending review of his sentence, after spending two days in his trailer behind the court at Camp Justice.

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But in a surprise move, the judge closed out this session of on-again, off-again hearings with a proposed solution.

He ordered Harvey Rishikof, who oversees the war court as the so-called Convening Authority, to mobilize a civilian defense attorney named Brian Mizer “to serve as learned counsel in this case,” meaning as the designated death-penalty defender.

Mizer, a captain-select in the U.S. Navy Reserve judge advocate general corps, was mobilized to the Nashiri defense team from 2013 to 2015 before returning to civilian life, over Nashiri’s objections.

Mizer is a familiar face around the war court. In the summer of 2008, he was the senior military defense counsel at the trial of Osama bin Laden’s former driver, Salim Hamdan, who was convicted of terror charges but with time served was repatriated to Yemen later in the year. The conviction was later overturned.

Mizer also represented Ammar al Baluchi in the Bush administration era effort to try five men for the Sept. 11, 2001, terror attacks, an aborted capital case. The rules for the war court at the time did not require that each death-penalty defendant get a learned counsel, so the American Civil Liberties Union funded them.

It was unclear Friday whether Mizer meets the American Bar Association definition of a learned counsel.

Aside from his support role for Nashiri, he has only handled death-penalty appeals as a civilian at the Air Force appellate level — notably one that got an airman, Andrew Witt, off the U.S. military’s Death Row after a conviction for a 2004 murder of a couple at Robins Air Force Base in Georgia. The case was prosecuted by Spath when the judge was an Air Force major.

In ordering the return of Mizer, Spath rescinded his Sept. 23, 2016, decision that found Mizer was not “irreplaceable at this stage of the proceedings.”

Spath made clear his effort to mobilize Mizer was to try to keep the case on track toward a trial, even as he tries to decide what to do about Kammen, Eliades and Spears. Mizer knows Nashiri, and worked well with him, according to court testimony. Mizer also has a security clearance and is familiar with the case.

Yaroshefsky new
Hofstra Law School Professor Ellen Yaroshefsky, who specializes in legal ethics. Hofstra Law School

On Friday, Spath questioned an expert on legal ethics by video feed to war court headquarters in Virginia about an opinion she offered that became a basis for the three lawyers leaving the case.

Hofstra Law professor Ellen Yaroshefsky, who had lost a federal court bid to quash the war court’s subpoena, was flanked by two attorneys as she explained that Kammen, whom she did not know, sought her out for an opinion over the summer. At the time, Kammen asked whether she’d be willing to get a security clearance to examine classified information confounding his ability to have confidential conversations with Nashiri.

Yaroshefsky said she didn’t get the clearance but did get a series of facts from Kammen, including the 2013 discovery of listening devices in the prison’s attorney-client meeting rooms and a caution from Baker that he had lost confidence in the confidentiality of attorney-client conversations at Guantánamo.

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If the facts presented to her were wrong, Spath asked, might she change her opinion that Kammen was bound to leave the case. Yaroshefsky said those facts were the basis of her opinion, adding that it’s a “fundamental, a bedrock principle” that a lawyer who can’t have confidential conversations with a client “has no choice but to withdraw.”

Ethics rules about confidential communications and the necessity to withdraw are the same in every jurisdiction, she said, including military commissions.

Spath, bound by his obligation to not disclose classified information underpinning Kammen’s problem, offered a hypothetical: What if someone’s listening in on their conversation? Can a client waive the conflict?

That would require “informed consent,” Yaroshefsky replied. “Here, because the information was classified, Mr. Kammen could not even inform his client of the reasons and the underlying information so he couldn’t obtain informed consent.”