U.S. Military

Two Servicemen Suffering From Brain Trauma, PTSD Win Death-Penalty Relief

Two servicemen—one a former airman on the U.S. military death row, another a decorated Vietnam veteran sentenced to death in Pennsylvania—have won relief from their capital convictions or death sentences. On August 1, 2018, the La Crosse Tribune reported that an Air Force court martial jury had imposed a life sentence on senior airman Andrew Witt (pictured, left) following a three-week capital resentencing trial. The verdict in Witt's case came two years after the U.S. Court of Appeals for the Armed Forces—the nation's highest military court—overturned his 2005 death sentence for murdering a fellow airman and his wife. On July 25, 2018, the U.S. District Court for the Eastern District of Pennsylvana granted death-row prisoner Robert Fisher (pictured, right) a new trial and sentencing hearing in the July 1980 murder of his girlfriend. If that case continues to a new capital trial, it will be Fisher's third trial and fourth capital sentencing hearing. Witt's conviction in 2005 marked the first time a U.S. airman had been sentenced to death since 1992. His death sentence was first overturned in August 2013, when the Air Force Court of Criminal Appeals—an intermediate appellate court—ruled that his lawyers had been ineffective in failing to present mitigating evidence that he had suffered a traumatic brain injury four months before the murders. The military appealed that decision, and Witt's death sentence was reinstated by the Air Force Court of Appeals in July 2014. However, the Armed Forces appeals court agreed that Witt's penalty-phase lawyers had been ineffective and remanded the case for a new sentencing hearing. With Witt's resentencing, four prisoners remain on the U.S. military death row. Twelve other servicemen have had their military death sentences reduced to life in prison. In Fisher's case, the federal court granted a new trial after the trial judge misinstructed the jury on the meaning of "reasonable doubt." It reversed Fisher's death sentence because the prosecution had sought the death penalty based on an aggravating circumstance that did not exist at the time of his first trial and because his lawyer failed to investigate and present mitigating evidence related to Fisher's military service in Vietnam, where he received a Purple Heart from President Lyndon Johnson (also pictured). This was not the first time that one of Fisher’s trials was problematic. At his first trial, Fisher’s lawyer had him tell the jury about his military service and his Purple Heart medal but failed to investigate any problems related to Fisher’s military service. Additionally, no mental health expert testified at Fisher’s sentencing to explain his brain damage, the psychological after-effects of intense combat, or his other serious mental health impairments, drug usage, and adjustment difficulties after returning from Vietnam. His defense lawyer also failed to rebut the prosecution’s portrayal of Fisher as simply a bad soldier.

Amid War-Court Turmoil, Guantánamo Death-Penalty Judge Retires From Military Service

The U.S. Air Force has announced that the Guantánamo military commission’s USS Cole death-penalty judge, Air Force Colonel Vance Spath (pictured) is retiring, injecting new uncertainty into war court proceedings already steeped in chaos. In a one-sentence email to the McClatchey news service on July 5, an Air Force spokesperson confirmed that Spath “has an approved retirement date of Nov. 1, 2018,” well before the controversial trial proceedings in the capital prosecution of Abd al Rahim al Nashiri are expected to begin. Nashiri is accused of orchestrating the October 2000 attack on the U.S. Navy destroyer USS Cole that killed 17 American sailors, but his former lawyers describe him instead as an intellectually limited al-Qaeda foot soldier. Presenting evidence that the CIA admittedly subjected Nashiri to 14 years of “physical, psychological and sexual torture,” those lawyers unsuccessfully challenged Nashiri’s military detention and U.S. government efforts to try him in a military tribunal rather than in a civilian court. In October 2017, Brigadier General John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, found “good cause” to permit the entire civilian defense team assigned to Nashiri's case to withdraw amid allegations that the government had been illicitly eavesdropping on privileged attorney-client legal meetings. At the time, Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo. In November 2017, Spath convicted Baker of criminal contempt and sentenced him to 21 days of confinement for allowing the resignations. After two days of confinement, Harvey Rishikof, who served as the Convening Authority of all of the Guantánamo tribunals, released Baker from confinement, and a federal court later overturned Baker’s contempt conviction. The civilian resignations left Nashiri represented by a single military lawyer, Lieutenant Alaric Piette, who had graduated law school only five years earlier, does not meet the American Bar Association standards for death-penalty defense, and has never tried any murder case. During a January 2018 pretrial hearing in the case, Spath criticized Piette for seeking a continuance in the case until expert death-penalty co-counsel could be appointed, telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” Media reports described an exasperated Spath as having delivered “a 30-minute monologue” expressing frustration over having his orders ignored, alleged inaction by Pentagon officials to help him return civilian counsel to the case, and uncertainty over his authority raised by Baker’s actions. In early February, U.S. Secretary of Defense Jim Mattis fired Rishikof without explanation, raising concerns of political interference in the already tumultuous legal proceedings. Then, on February 16, Spath halted all pretrial proceedings in the USS Cole case indefinitely. “We’re done until a superior court tells me to keep going,” he said. Spath said at the time that he was considering retiring from the Air Force.

Lack of Death-Penalty Counsel Brings Guantánamo War Crimes Trial to a Halt

A Guantánamo military commission judge has indefinitely suspended proceedings in the death-penalty trial of Abd al Rahim al Nashiri, accused of planning al-Qaida’s alleged 2000 bombing of the Navy warship USS Cole off the coast of Yemen. Expressing exasperation over his continuing inability to compel civilian death-penalty lawyers to return to the case, Air Force Colonel Vance Spath (pictured) halted the proceedings on February 16. “I am abating these proceedings indefinitely,” Spath said. “We’re done until a superior court tells me to keep going.” Nashiri’s entire civilian defense team resigned for undisclosed ethical reasons, amid allegations that military officials had violated attorney-client privilege by eavesdropping on legal meetings at the Guantánamo Bay detention facility at which Nashiri has been held for the majority of his 15 years in U.S. custody. The resignations of veteran death-penalty defender Rick Kammen and civilian attorneys Rosa Eliades and Mary Spears followed Spath's refusal to allow the defense lawyers to investigate something that Kammen had discovered in a site reserved for attorney-client meetings. Because the discovery involved classified information, the lawyers were prohibitted from discussing it with their client, placing them, they said in an impossible ethical bind. Citing this ethical problem, the lawyers sought and received permission from Marine Brig. Gen. John Baker, the chief defense counsel for the Military Commissions Defense Organization, to withdraw from the case, leaving Nashiri's defense solely in the hands of a single military lawyer, Navy Lt. Alaric Piette, who had never tried a murder case. Spath then ordered Baker to rescind the order, and when Baker refused, sentenced him to 21 days of confinement for contempt of court. Harvey Rishikof, the Convening Authority of the Guantánamo tribunals, released Baker from confinement pending appeal and Spath and Piette have repeatedly clashed over Piette's request to have an experienced death-penalty lawyer appointed as his co-counsel in the case. Spath’s abatement of the proceedings came on the last day of a weeklong hearing in which Eliades and Spears ignored prosecutorial subpoenas to appear in court by video feed. After assembling the defense and prosecution in the court, Spath delivered what media reports described as "a 30-minute monologue" expressing frustration over having his orders ignored, alleged inaction by Pentagon officials to help him return the counsel to the case, and uncertainty over his authority raised by Baker's actions. “We need somebody to tell us, ‘Is that really what that says despite every other court system in America thinking differently?’” Spath said. “We need action from somebody other than me. And we’re not getting it.” Spath, who said he was considering retiring from the Air Force, said he had debated “for hours” whether to dismiss the case, but chose not to, saying that would have “reward[ed] the defense for their clear misbehavior and misconduct.” Nashiri, who has been diagnosed with PTSD and depression, remains a law-of-war detainee at Guantánamo Bay’s secretive Camp 7, which houses both captives facing war crimes trials and uncharged war prisoners.

Pentagon Fires War Court Official Who Was Attempting to Negotiate End to Guantánamo Death-Penalty Trial

The sudden firing by U.S. Secretary of Defense Jim Mattis (left) of the Pentagon official who oversaw military commission trials at Guantánamo Bay has raised concerns of political interference in the already tumultuous legal proceedings in the death-penalty trials of the five men charged with plotting the 9/11 attacks on the United States. The New York Times reports that Mattis fired Harvey Rishikof (right), who served as the Convening Authority of the Guantánamo tribunals, as Rishikof was engaged in plea negotiations that would potentially have spared the Guantánamo defendants the death penalty in exchange for pleading guilty to the September 11 attacks. The Pentagon provided no explanation for the February 5 firing, and David Nevin—who represents accused attack-mastermind Khalid Shaikh Mohammed—told The Times that “[t]he firing fairly raises the question" of whether the Pentagon was attempting to unlawfully influence the convening authority. The Office of the Convening Authority is responsible for approving cases for trial, plea agreements, reviewing convictions and sentences, and providing resources to defense teams. Military law prohibits even the appearance of “unlawful command influence” over the handling of a case. Nevin said the defense has "an obligation to try to learn everything we can" about possible improper influence, and he has asked prosecutors to turn over information relating to Rishikof’s firing. At the same time Rishikof was dismissed, the Pentagon's acting general counsel, William S. Castle discharged Rishikof's legal advisor Gary Brown, also without explanation. Brown and Rishikof’s firings have focused renewed attention on the dysfunctional military tribunals at Guantánamo. The death-penalty trial of Abd al Rahim al Nashiri, accused of planning the bombing of the U.S.S. Cole in Yemen, was thrown into chaos in October 2017 when his entire civilian defense team resigned amid allegations that military officials had violated attorney-client privilege by eavesdropping on legal meetings at the Cuban facility. Rishikof intervened in that case after the judge, Air Force Colonel Vance Spath, held the chief defense counsel for the Military Commissions Defense Organization, Marine Brig. Gen. John Baker, in contempt for allowing the resignations. Spath has directed that proceedings in the U.S.S. Cole case continue without expert death-penalty counsel, even though the only remaining member of Nashiri's defense team, Lieutenant Alaric Piette, graduated law school in 2012, does not meet the American Bar Association standards for death-penalty defense, and has never tried any murder case. During a January 2018 pretrial hearing in the case, Spath criticized Piette for seeking a continuance in the case until expert death-penalty counsel could be appointed, telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” On February 5, Piette, who stayed on the case out of concern for his client’s rights, told The New York Times: “I don’t know if I’ve done the right thing, but I don’t think I really had a choice.” Piette “doesn’t come close to being qualified" to handle the case, according to Ellen Yaroshefsky, a professor of legal ethics at Hofstra University. “So a death penalty case is basically going forward without a lawyer. If that is what we think passes as a court system, we’re in big trouble,” she said. 

Former Florida Death-Row Doctor: Experience of Veterans Highlights Death Penalty's Failures

A former Florida death-row doctor says the experience of U.S. military veterans who have been sentenced to death provides a lens through which the public can better understand some of the failures of the state's death penalty and identify opportunities for meaningful reform of the criminal justice system. In a Veterans Day guest column in Florida Politics, psychiatrist Dr. Joseph Thornton (pictured) writes that "18-percent of Florida’s death row is made up of veterans of our military services." Their backgrounds of "childhood trauma, drug use and more," he says, is typical of the experiences of "almost all" of the prisoners on the state's death row. In conjunction with Veterans Day 2015, DPIC released a report, Battle Scars: Military Veterans and the Death Penalty, that estimated at least 300 veterans were on state and federal death rows across the country, representing approximately ten percent of the nation’s death row population. The report highlighted the plight of veterans with Post-Traumatic Stress Disorder (PTSD), the lack of effective mental health intervention and support services, and the failures of defense counsel to investigate and present critical evidence to spare the veterans' lives. Dr. Thornton—whose more than 30-years of clinical experience includes three years overseeing medical and psychiatric care on Florida's death row—noted that two men whom Florida executed in 2017 were military veterans. Michael Lambrix, who was executed on October 5, was honorably discharged from the Army after becoming disabled in a training accident and subsequently developed a serious problem with drugs. Patrick Hannon, executed November 8, already suffered from drug abuse while in the military. "Neither," Dr. Thornton writes, "had the benefit of current intervention tactics deployed by the Veteran’s Administration to care for veterans with a history of trauma and drug abuse." Dr. Thornton advocates that Florida reallocate the money it spends on the death penalty for "more mental health treatment services, especially for military veterans, who deserve better treatment after sacrificing so much for our country." The state, he writes, should "place a moratorium on executions, and not just those of veterans, but everyone on Florida’s death row." Four veterans were executed in the United States in 2016: Georgia executed Brandon Jones and William Sallie, who had served in the Army, and Travis Hittson, who had served in the Navy; Alabama executed former Army reservist. Ronald Smith. Two men who served in the military have been exonerated in 2017: Air Force veteran Ralph Daniel Wright, Jr. was exonerated in Florida in May and Rickey Dale Newman, a mentally ill former Marine suffering from posttraumatic stress disorder who was homeless at the time he was charged with capital murder in Arkansas.

USS Cole Lawyers Resign From Guantánamo Death-Penalty Defense, Say Government Spied on Client Communications

The U.S. Supreme Court has denied review of a petition filed by lawyers on behalf of Abd al Rahim al Nashiri—accused of orchestrating al-Qaida’s October 12, 2000 suicide bombing of the USS Cole warship off the coast of Yemen—challenging the legality of his death penalty trial before a Guantánamo Bay military commission. But in what has been described as "a stunning setback" to what would have been the first death-penalty trial held before the special military tribunals established in the wake of the 9/11 attacks, the entire civilian legal team has resigned from the case amid allegations that the government was illicitly listening in on their legal meetings. The Miami Herald reported on October 13, just three days before the Supreme Court decision, that the Chief Defense Counsel for the Military Commissions Defense Organization, Brigadier General John Baker (pictured) had “found good cause” to permit Nashiri's defense team to withdraw from the case as a result of ethical concerns created by alleged government spying on privileged attorney-client meetings. In June 2017, Gen. Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo, saying that he was “not confident that the prohibition on improper monitoring of attorney-client meetings” at the detention center was being followed. Attorney Rick Kammen, who has defended Nashiri since 2008, alleges in the Supreme Court petition that his team discovered classified information contradicting government assurances that the facilities in which they met with Nashiri were not being improperly surveiled. In the past, the spying has included, among other things, "microphones hidden in smoke detectors." Because the information relating to the violation of the right to counsel is classified, the defense lawyers have been ordered by the judge in the case, Air Force Colonel Vance Spath, not to share the information with the public or their client. Although Brig. Gen. Baker has released Kammen from representing Nashiri, the case cannot proceed until another experienced death-penalty defender is brought onboard. Two other civilian defense attorneys who are Pentagon employees—Rosa Eliades and Mary Spears—also quit the case with permission from Baker but remain on his staff. The only member of Nashiri's defense team who remains on the case is Lieutenant Alaric Piette—a former Navy SEAL who has never tried a murder case. “I am certainly not qualified as learned [death-penalty] counsel,” Lt. Piette told the Miami Herald, which he says Nashiri “is entitled to and should have ... since the government is trying to kill him.” Kammen says the defense team is "angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice.” The pretrial proceedings at the Guantánamo Bay that were scheduled to begin on October 30th are expected to be delayed for months, until learned death-penalty counsel who has received Top Secret security clearance to review the evidence in the case is appointed.

Sixteen Years Later, No Date in Sight for Death-Penalty Trial of Alleged 9/11 Conspirators

Sixteen years later, the alleged perpetrators of the September 11, 2001 hijackings and attacks on the Pentagon and World Trade Center, and the downing of Flight 93, have yet to be tried, and issues relating to the use of evidence obtained by torture, the appropriateness and legality of trials by military commission, and where and how they should be tried raise questions as to whether and when a trial may take place. The five men charged in the attack—alleged mastermind Khalid Sheikh Mohammed and alleged co-conspirators Walid bin Attash, Ramzi bin al-Shibh, Ammar al-Baluchi and Mustafa al-Hawsawi—remain detained in Guantánamo Bay, Cuba, facing 2,973 individual counts of murder. Mohammed was captured in Pakistan in 2003 and turned over to the CIA, charged in 2008, and arraigned in 2012. A 2014 report on CIA interrogations by the U.S. Senate Select Committee on Intelligence—known as “The Torture Report”—documents that Mohammed was subjected to numerous acts of torture, including sleep deprivation, "rectal rehydration," and being waterboarded 183 times in a single month. As with the case of accused USS Cole bombing suspect, Abd al Rahim al Nashiri, the five defendants have accused the government of continuing misconduct and are challenging the legality of the military commissions that have been established to conduct the terrorism trials, the use of evidence obtained by means of torture, and the destruction of evidence they say is vital to defend the case. Military prosecutors have requested a January 2019 trial date, with fast-tracked briefing deadlines that trial judge Army Col. James L. Pohl has already said he will not adopt. But given the numerous pre-trial issues that need to be resolved, defense lawyers say it could be years before the men face trial. These issues include whether the judge and his staff have a high enough level of security clearance to review top secret documents that are critical to defense motions challenging the reliability of confessions made to FBI agents by defendant Ammar al-Baluchi in post-torture interrogations conducted shortly after al-Baluchi arrived at Guantánamo in 2006. Another issue is whether the defendants should be tried in civilian court or by a military commission. In 2011, then-Attorney General Eric Holder warned that Mohammed’s case could take years to bring to trial unless it were transferred to a civilian court. Michael Bachrach, an attorney who represented Ahmed Ghailani, the Tanzanian al-Qaida terrorist convicted in New York in 2010 for his part in the 1998 bombings of US embassies in Kenya and Tanzania, says that Ghailani’s case proved that a fair civilian trial is possible. “We had classified and unclassified material involved, torture involved, and the jury saw what was necessary for them to see," Bachrach said. "Can Mohammed get a fair trial by military commission? I’m not as confident about that.” Mohammed's lawyer, David Nevin, told The Guardian that, once it gets started, the trial itself could last for more than a year, followed by appeals that could take nearly two decades. “There’s every possibility that [Mohammed] will die in prison before this process is completed,” he said. With the reduced life expectancy of "someone who’s been tortured," he said, "you have to ask, why exactly are we doing this, or doing it in this way? We are spending millions and millions of [public] dollars every week for something that could be pointless.”

Federal Appeals Court Removes Military Judge From Case For Comments Prejudging 9/11 Detainee's Guilt

A federal appeals court in Washington has ordered the recusal of a military judge from hearing an appeal in the Guantánamo military commission death penalty trial of five defendants accused of direct responsibility for the 9/11 attacks. A unanimous three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled on August 8 that Judge Scott L. Silliman of the United States Court of Military Commission Review (CMCR) was disqualified from participating in appeals in the case because of prior public comments he had made prejudging the guilt of accused 9/11 conspirator Khalid Sheikh Mohammad. Lawyers for Mohammad had petitioned the court to have Silliman removed from the case, citing more than a dozen instances in which, they said, Silliman had made comments exhibiting a constitutionally intolerable risk of bias. Before becoming a judge, Silliman gave an interview to The World Today in 2010 about the case of Guantánamo Bay detainee Ahmed Khalfan Ghailani. During that interview, he said: “We’ve got the major conspirators in the 9/11 attacks still at Guantánamo Bay—Khalid Sheikh Mohammed and four others.” Later in the same interview, Silliman compared Ghailani's culpability to that of Mohammed, calling them "two totally different types of cases” and saying “the magnitude of what they did is very different.” The judges wrote that “the Court can hardly perceive how calling Petitioner one of the ‘major conspirators in the 9/11 attacks’ and referring to what he 'did’ is anything other than the expression of an opinion concerning his responsibility for those attacks.” Such statements, they wrote, required Silliman to disqualify himself from the case. Because “Judge Silliman failed to do so," the court wrote, Mohammad had provided "clear and indisputable” grounds for his removal. Mohammad's petition also cited remarks made by Silliman in a 2008 interview with the Los Angeles Times, where he said that “we’re going to have a military commission for those the United States believes, and most of the world acknowledges, to be ring leaders of the 9/11 attacks.” The petition also said that Silliman was quoted in another media interview in 2011 discussing how and where Mohammad “will be” executed. The ruling vacates a June 29 order by the CMCR that had reinstated two charges against the defendants that the trial judge had dismissed. The CMCR will now have to re-hear the government's appeal of that issue before a new panel. University of Texas Law Professor Steve Vladeck, who represents several Guantánamo detainees in petitions seeking U.S. Supreme Court review of their cases, called the decision “yet another stinging rebuke" of the CMCR by the Court of Appeals. He said the decision in Mohammad's case puts off resolution of another question raised concerning the CMCR, “whether active-duty military officers (including the other two judges on the CMCR panel that originally heard the government’s appeal) may lawfully serve as judges on the CMCR."

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