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.