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.