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 sur­veilled. 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 30^th 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.

The President of the National Association of Criminal Defense Lawyers (NACDL), Rick Jones, expressed dis­may at the con­tin­u­ing pat­tern of attor­ney-client priv­i­lege vio­la­tions, which he says ​“have plagued the Guantánamo mil­i­tary com­mis­sions since their incep­tion.” Jones echoed a 2012 NACDL Ethics Advisory Committee opin­ion on orders that com­pro­mise attor­ney-client con­fi­den­tial­i­ty at Guantánamo Bay in assert­ing that the spy­ing under­mines the fair­ness of crim­i­nal tri­als. Without attor­ney-client con­fi­den­tial­i­ty, Jones said, ​“jus­tice can­not be sought nor served.” 

(C. Rosenberg, ​“Guantánamo’s USS Cole death-penal­ty case in lim­bo after key defense lawyer quits,” Miami Herald, October 13^th, 2017; A. Funk, ​“General Finds Good Cause to Allow the Withdrawal of Three Members of Defense Team in U.S.S. Cole Trial at Military Commissions in Guantanamo; Proceedings Plagued by Government Violations of Attorney-Client Privilege.”) Read the peti­tion for writ of cer­tio­rari filed in Al-Nashiri v. Trump, No. 16 – 8966, here, and Brig. Gen. Baker’s let­ter on improp­er mon­i­tor­ing of attor­ney-client con­ver­sa­tions at Guantanamo here. See Guantánamo, U.S. Military, Prosecutorial Misconduct, Representation.