In a sweeping order, a federal court has instructed the Justice Department to submit top-secret information about suspected eavesdropping on attorney-client meetings at Guantánamo in an appeal of the now stalled USS Cole death-penalty case.
It is not immediately clear what the U.S. Court of Appeals for the District of Columbia Circuit can do with the information. It is also not immediately clear what would happen if the U.S. government refused to furnish the information, invoking national security privilege. The next stop could be the U.S. Supreme Court.
The three-judge panel of Obama appointees was asked to decide a very narrow question: whether two Department of Defense lawyers who quit the terror case over the discovery of a microphone in their meeting room can participate in a Pentagon appellate panel review of their right to resign.
But in a three-page order issued Thursday evening Judges Patricia Millett, Cornelia Pillard and Robert Wilkins ordered the U.S. government to provide them with classified military commission filings in the case against Abd al Rahim al Nashiri.
Nashiri, a Saudi who was waterboarded by the CIA, faces the death penalty in his trial as the alleged architect of al-Qaida's bombing of the USS Cole warship. Seventeen American sailors died in the suicide attack off Yemen on Oct. 12, 2000.
The trial itself is on indefinite hold. Air Force Col. Vance Spath, the military commissions judge, froze all proceedings on Feb. 16, saying a more superior court should decide several threshold issues, including his contempt authority, power to order U.S. Marshals to seize a U.S. citizen who won't come to Guantánamo, and whether a war court judge or the chief defense counsel has the power to excuse an attorney of record.
The crisis had simmered for months. In August, members of Nashiri's defense team, accompanied by U.S. military forces at the prison, undertook an authorized inspection of their ostensibly confidential attorney-client meeting room at Guantánamo, unscrewed a light-switch-sized plate — and found a listening device inside.
Moreover, according to several people who are aware of the discovery and spoke to McClatchy on condition of anonymity, Nashiri defense team members and U.S. troops looked inside two nearby rooms and spotted monitoring equipment. Some equipment was behind a wall of their meeting room; more was across the hall.
They took photos and documented the discovery, and asked the judge to permit a full investigation. Spath refused, in a classified ruling, and forbade Nashiri's team to discuss what they saw with either the accused terrorist or the public.
Thursday's order marks the first time a U.S. civilian court has expressed an interest in the question of confidentiality and the possibility of pierced attorney-client privilege at Guantánamo — the offshore prison where nine of the 40 U.S. military captives have been charged with war crimes.
A U.S. District Court Judge in Washington, D.C., Royce Lamberth, is deciding a question of the contempt authority of the war court, specifically whether the USS Cole case judge had the power to summarily convict and confine Marine Brig. Gen. John Baker, the chief defense counsel for military commissions, for letting defense lawyers quit the case on ethical grounds.
Another federal judge is deciding if a war court judge can seize a civilian and force him to appear before the court.
At the D.C. Circuit, two Pentagon-paid defense attorneys who quit Nashiri’s defense team, Rosa Eliades and Mary Spears, sought different federal court intervention: They want attorneys to represent them in an appeal to the U.S. Court of Military Commissions Review, the Pentagon panel looking at whether the USS Cole case judge can force them to represent Nashiri despite their resignations on ethical grounds. The CMCR wouldn’t let them participate in the appeal before it.
The circuit court judges also ordered U.S. government attorneys to provide by May 21 a wide-ranging declaration "describing any and all intrusions that have occurred, may have occurred, or that the government believes foreseeably could occur" in communications by Eliades and Spears with Nashiri or anyone else.
Case prosecutors have said in court that there were no violations of attorney-client privilege.
The declaration essentially orders the government to tell the judges, in a secret filing, if necessary, about any clandestine surveillance activity on the lawyers' conversations or computers now or in the future.
"They are really digging into this underlying issue," said Navy Lt. Alaric Piette, Nashiri's lone defense attorney, who considers the violation of attorney-client confidentially a "serious concern."
Prosecutors in March described the discovery by Nashiri's defense team as a "legacy microphone." Former lead counsel Rick Kammen, who quit the case after the judge refused to let him investigate the question of surveillance, refused to confirm or deny the McClatchy account.
He did, however, call the "legacy microphone" characterization "a gross distortion" of the ethics issue that caused him to resign from the case after nearly a decade. "It is absolutely outrageous that now some portion of the truth is seeping out," he told McClatchy. "But only in ways that the government feels will help it."
The circuit order not only seeks classified war court filings about Kammen's effort to investigate the microphone discovery but also "any classified or unclassified information" that Baker was giving "regarding breaches, accidental or otherwise, of attorney-client confidentiality and/or work product privilege pertaining to the representation by attorneys under his supervision of detainees at Guantánamo Bay."
Todd Toral, a Jenner & Block attorney representing Eliades and Spears, said in a statement Friday afternoon that the court order "shows it intends to undertake a rigorous evaluation of the government’s conduct in this matter. We think this is a necessary and proper search for the truth and justice."
A Pentagon spokeswoman declined to say what government entity would be providing the classified information to the circuit court. The Department of Defense "won't comment on matters in litigation," Navy Cmdr. Sarah Higgins said Friday afternoon.