Judge may seek testimony from Secretary of Defense to sort out USS Cole stalemate

Flags were lowered to half staff Thursday, Feb. 15, 2018, at U.S. Navy base Guantánamo for victims of the Parkland school shooting. Shown here, Camp Justice’s war court headquarters in a U.S. military cleared photo.
Flags were lowered to half staff Thursday, Feb. 15, 2018, at U.S. Navy base Guantánamo for victims of the Parkland school shooting. Shown here, Camp Justice’s war court headquarters in a U.S. military cleared photo.

The military judge in the USS Cole bombing trial said Thursday he was considering calling Secretary of Defense Jim Mattis to testify to help solve a stalemate over the resignations of key lawyers in the death-penalty case.

Air Force Col. Vance Spath, the judge who ordered a Marine brigadier general to 21 days confinement for contempt of court, said at the conclusion of a four-day session that he might want to ask Mattis, a retired Marine general, what he was doing about “a rogue defense organization” at the war court.

At issue is a decision by the Chief Defense Counsel, Marine Brig. Gen. John Baker, to release the veteran capital-case defender and two Pentagon-paid civilian attorneys from defending Abd al Rahim al Nashiri, the alleged mastermind of the October 2000 USS Cole bombing. Seventeen U.S. sailors died.

They quit the case, with Baker’s permission, over an ethical conflict and their belief that their confidential attorney-client conversations are compromised. Details are mostly classified, and Spath has ruled no conflict exists. This week, prosecutors subpoenaed the two Pentagon defense lawyers, Rosa Eliades and Mary Spears, to explain themselves by video link from Virginia.

They did not appear, particularly frustrating the judge because they are on the Department of Defense payroll. So Spath had prosecutors prepare writs of attachment to have U.S. Marshals pick up Eliades and Spears and force them to appear at war court headquarters, in a Pentagon building called the Mark Center. He then decided not to sign them.

Thursday, Spath explained that he realized that, by having Marshals “drag them over to the Mark Center,” he could create a conflict of interest that would result in their having to leave the case. Prosecutors and Spath want them to resume defending Nashiri. They also argue that Eliades could serve as a specialist in death-penalty defense, a learned counsel, even though she does not qualify under American Bar Association standards.

Secretary of Defense Jim Mattis addresses a media conference after a meeting of NATO defense ministers in Brussels on Thursday, Feb. 15, 2018. VIRGINIA MAYO AP

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The judge raised the idea of calling Mattis just 10 days after the Secretary of Defense, without explanation, fired the two top war court overseers — Convening Authority Harvey Rishikof and Legal Adviser Gary Brown — and replaced them, at least temporarily, with already ensconced Department of Defense lawyers.

Spath has been to some degree pressing ahead with preparations for the death-penalty trial, letting prosecutors present evidence before a jury is empaneled, despite objections from the lone defense lawyer left on the case. Navy Lt. Alaric Piette, a 2012 Georgetown Law graduate and former SEAL, says the law requires a learned counsel at every phase of the pretrial proceedings. Piette doesn’t qualify; and has been mostly refusing to take part in the pretrial proceedings.

In a rare remark at the podium on Thursday, Piette said the civilian lawyers’ departure and his own refusal to participate was not a defense strategy. “Everybody deserves closure. They need a reckoning. We need the truth,” said Piette. “The only way there is a fair trial is, if there is qualified learned counsel on this case.”

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The judge reminded him that the law governing military commissions defense said there should be a learned counsel “to the extent practicable.” Spath has ruled there is one — veteran learned counsel Rick Kammen, who resigned in October, with Baker’s permission — because Spath, as judge, has not released him from the case. He said Kammen “abandoned his client after many years and almost $2 million, walked out the door.”

The judge raised the idea of ordering the Secretary of Defense to testify Thursday after a senior, career Pentagon lawyer testified that he had no authority to order anyone in the Military Commissions Defense Organization to do anything. Deputy Pentagon General Counsel Paul Koffsky said his role with respect to that office is to write a performance review of Baker, no other defense attorney, and to help relay requests for resources.


Spath asked Koffsky how it could be that a Department of Defense employee could refuse an order from a war court judge. Koffsky, a Columbia Law School graduate who has worked at the Pentagon since 1979, replied that there is “a canon of professional responsibility” that allows individuals before a court who believe an order is invalid to say so — and not comply with the order.

Other ideas the judge raised included dismissing the charges; freezing the case; or declaring Kammen, Eliades and Spears gone — and having Piette defend the alleged terrorist, until an appeals court intervenes.

A case prosecutor, Army Col. John Wells, said the judge had other options, to include referring the question of what to do about the absent defense lawyers to the chief military commissions judge, Army Col. James L. Pohl. Wells suggested the other judge could look into Eliades’ and Spears’ refusal to obey Spath’s orders to appear as a misconduct case that might result in contempt findings and disbarment from war court work.

“We need to figure this out,” the judge told the prosecutor. “We are infecting this process with uncertainty, doubt and delay.”