A federal court has canceled its inquiry into monitoring of attorney-client meetings at Guantánamo, and will instead permit a Pentagon review panel to tackle underlying issues that have paralyzed the USS Cole war crimes case.
The three judges at the U.S. Court of Appeals for the District of Columbia Circuit had sought answers after a lower court forbade two former USS Cole defense attorneys — who quit the case after discovering a hidden listening device in their Guantánamo meeting room — from participating in a lower-court appeal of issues that prompted the judge to suspend the trial.
On May 10, the D.C. appellate court announced it was undertaking a classified review of the question of violations of attorney-client confidentiality at the remote military prison. Saudi Abd al Rahim al Nashiri is charged in a military commission death-penalty case alleging that he was the 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 judges ordered the Justice Department to provide them with detailed information about possible "intrusions" — in the past, present and potentially in the future — on attorney-client meetings at the base.
In response, war court prosecutors relented and said the attorneys, Rosa Eliades and Mary Spears, could be represented at the U.S. Court of Military Commissions Review. That reversal stripped the higher court of a reason to investigate, the civilian court said in a one-page order Monday evening.
Now, the U.S. Court of Military Commissions Review can ask fundamental questions framed by the case judge, Air Force Col. Vance Spath. He wants the Pentagon review panel to decide his authority to send U.S. Marshals to seize U.S. citizens who refuse to appear before the court; to punish U.S. military members with contempt of court, rather than refer the question to a court-martial; and to overrule the chief defense counsel on a decision to release case attorneys of record.
Under the CMCR's briefing timetable, those questions could be resolved this summer, and pretrial hearings in the USS Cole case could resume — unless the civilian appellate panel once again finds cause to intervene. The appeals panel has set a May 29 deadline for court filings on the questions but has yet to schedule oral arguments.
War court watcher Stephen Vladeck, a University of Texas Law professor, said Tuesday that perhaps the Justice Department or prosecutors "were afraid of a deep dive from that [civilian] panel at this point."
The Trump administration is not the first to reverse course to avoid a higher court review of fundamental questions that still linger over U.S. military detention authority in the aftermath of the Sept. 11, 2001, terror attacks.
In 2006, the Bush administration charged "enemy combatant" Jose Padilla in federal court with terror crimes to avoid a U.S. Supreme Court review of the right of the president to hold a U.S. citizen in military detention. The Obama administration sent home suspected Taliban captives at Guantánamo who asked civilian courts to free them from military custody because the president had declared the War on Terror had ended in Afghanistan.
The attorney for Eliades and Spears, Todd Toral, declared himself "disappointed the government sidestepped the D.C. Circuit’s order commanding it to disclose its intrusions into the privileged relationship between our clients and their client. ... Sunshine is said to be the best of disinfectants.”
He added, "We look forward to presenting our position before the CMCR in the coming weeks."