Two civilian, Pentagon-paid attorneys who quit the USS Cole case over an ethical conflict again defied a judge’s order to appear on Friday in his court, despite a subpoena.
It was the third time that civilians Rosa Eliades and Mary Spears refused to show up either at the war court compound called Camp Justice, or alternatively at Military Commissions headquarters inside a building called the Mark Center in Alexandria, Virginia.
Instead, a lawyer wrote to the judge, Air Force Col. Vance Spath, that he had no authority to order the women to court because they were properly released from the case last year.
The question of authority to release a lawyer is the essence of a current representation dispute in the death-penalty case against Abd al Rahim al Nashiri. The Saudi, a former CIA captive, is accused of orchestrating al-Qaida’s suicide bombing of the USS Cole warship on Oct. 12, 2000. Seventeen American sailors died, and dozens more were injured in the attack during a refueling stop off Aden, Yemen.
On Friday, the alleged terrorist sat in court alongside a single attorney, Navy Lt. Alaric Piette, a former SEAL and 2012 graduate of Georgetown Law School with no death-penalty trial experience.
“Clearly they’re not coming and they’re going to continue not to represent their client despite multiple orders,” Spath said of Eliades and Spears at the start of a four-day session, describing Nashiri as a client “who they frankly have abandoned.”
Spath disclosed that on Wednesday he ordered the prosecution to subpoena the two women to court, and that they had through an attorney sought to quash the order to appear. Given the short notice, Spath said, he would continue with other court business.
He displayed annoyance at their absence, but none of the urgency of the last session when he swiftly summarily convicted the general in charge of defense teams of contempt of the war court and ordered him confined to his quarters — for not returning the women and a third attorney to the case.
On Friday, the judge instructed case prosecutors “to work to have their attendance secured at either the February or March session.” He wants them to appear in court “so they can explain to me why they believe they cannot represent their client,” he said.
In October, the officer who runs the Military Commissions Defense Organization, Marine Brig. Gen. John Baker, excused Eliades, Spears and Rick Kammen, the case’s death-penalty defender. They asserted an ethics conflict and obligation to quit over a pattern of U.S. interference in their defense role.
But the judge rejects Baker’s authority to release them. On Nov. 1, Spath summoned the general to court, ordered him to reinstate the trio and summarily found Baker in contempt of the war court for refusing the order. The judge ordered the general confined to his quarters for 21 days, in a trailer park at the crude war court compound. He served just two days before a senior Pentagon official released him.
Since then Baker, who runs the Military Commissions Defense Organization, assigned Spears to be the office’s acting general counsel and Eliades to “special projects,” according to two attorneys who work at the defense organization. So, unlike Kammen, who was a $185 an hour contractor, Eliades and Spears continue to be on the Pentagon payroll.
In a 10-page letter to the judge, civilian attorney Todd Toral wrote on behalf of the two women that across the years, defense attorneys “discovered and brought to [Spath’s] attention significant history of actual and attempted governmental intrusion into the attorney-client relationship ... This intrusion included, among other things, government interference with attorney-client communications, intrusions into attorney-client relationships, undisclosed monitoring, and infiltration of defense teams.”
Toral also wrote that the two lawyers were “lawfully excused as counsel in this case” and now each woman is “a civilian citizen located in the United States and outside the [Military] Commission’s jurisdiction.”
Following the discussion of how to get a learned counsel on the case, the judge said he would devote the remainder of the hearing, scheduled for Friday, Monday and Tuesday to having agents pre-admit evidence to the case, a process he’s been presiding over since March.
Defense lawyer Piette has said he cannot participate in the process due to absence of a death-penalty defender. Spath has disagreed.
On Friday, the judge said he was undeterred by the lack of a death-penalty defense counsel — he’s repeatedly declared it a defense strategy — and intended to proceed toward trial. He said the USS Cole families, the bombing victims and Nashiri were all entitled to progress.
“I don’t have a dog in the fight. I don’t have a promotion riding on this,” said Spath, who came to the war court as chief of the Air Force judiciary. “I’m not going to get promoted. I’m detailed to this and trying to move forward the right way.”
Learned counsel Kammen, who had resigned and who as an hourly employee is apparently no longer paid by the Pentagon, in a Friday Twitter posting called what was happening at Guantánamo “a joke.”
“In a real court, none of this could possibly occur without learned counsel.”