GUANTANAMO BAY NAVAL BASE, Cuba_A Pentagon plane arrived at Guantanamo Sunday without three civilian lawyers who quit the USS Cole case, setting the stage for a showdown with the military judge who ordered them to the remote U.S. Naval base in Cuba.
Veteran death-penalty defense attorney Rick Kammen and colleagues Rosa Eliades and Mary Spears resigned from the team Oct. 11 over a classified ethical conflict. The judge said that by his reading of the rulebook, they cannot leave the case without his permission.
The judge �� Air Force Col. Vance Spath ��canceled court Monday and told defense and prosecution attorneys to file briefs on what to do next. Court rules require the presence of a "learned counsel," an attorney with experience in defending capital cases, to proceed.
"The military judge has ordered U.S. citizens to go to what the government claims is a foreign country to provide unethical legal services to keep the facade of justice that is the military commissions running. This order is illegal and neither I nor the other civilians are going to Guantanamo," Kammen said Sunday morning.
The special Pentagon charter specifically brought attorneys and other war court staff for a scheduled three-week pretrial hearing in the capital case against Abd al Rahim al Nashiri. The Saudi is accused of orchestrating al-Qaida's Oct. 12, 2000, suicide bombing of the warship off Yemen that killed 17 U.S. sailors and wounded dozens of others.
By Sunday night, however, the three-week session was in doubt. The judge canceled Monday's session and gave both sides until noon Monday to submit briefs on "the way ahead for dealing with the absence of Mr. Nashiri's learned counsel," said a war court spokesman, Air Force Maj. Ben Sakrisson. Open court might be held Tuesday.
Kammen has represented Nashiri as his death-penalty defender for a decade; the other two women came to the case later. Only a Navy lawyer with no capital experience remains on the case.
Those on board Sunday's flight included the judge and Marine Brig. Gen. John Baker, the chief defense counsel for military commissions, and his counterpart, Army Brig. Gen. Mark Martins. Baker authorized the resignations of Kammen, Eliades and Spears after they briefed him on a covert breach of attorney-client privilege involving something so secretive at the prison neither Nashiri nor the public can know the details.
In an Oct. 24 filing, Baker advised Spath that he released the three after "a thorough review of the relevant facts, both classified and unclassified, and the legal parameters of my supervisory authority," that considered advice from "a prominent legal ethicist, professor Ellen Yaroshefsky."
Baker wrote that as chief defense counsel, he has "unilateral, unreviewable authority to excuse counsel for good cause." Now that he's done that, he wrote, "Nowhere do the Rules make provision for the review or reversal of that determination."
On Oct. 16, Spath ordered the lawyers to appear in court, saying that while Baker "purported to find good cause" to approve their leaving the case, Spath, as judge, has not. "Accordingly, Mr. Kammen, Ms. Eliades, and Ms. Spears remain counsel of record in this case, and are ordered to appear at the next scheduled hearing."
It was yet to be seen if anybody has the authority to order them put on a plane and sent to Guantanamo.
When a subpoenaed witness did not show up to testify by video feed to the base last year, the judge sent U.S. marshals to the man's Massachusetts home, had him held in a Virginia jail overnight, and then taken to a Pentagon-run video-conference room. Before that happened, the lead USS Cole case prosecutor, Mark Miller, said, "I think we all agree that we cannot force somebody to come to the island."
The tug-of-war over authority to excuse the attorneys is based on different rule books governing the war court created by President George W. Bush after the Sept. 11, 2001, attacks and reformed by President Barack Obama to expand the rights of the accused. The war court judge's bench book, called the Trial Judiciary Rules of Court, says that once a civilian lawyer has appeared in court, "excusal must be approved by the military judge." But the Manual for Military Commissions, from which the rules are drawn, says the authority who appointed the lawyer may excuse the lawyer for good cause.
In response to a question about Spath's authority to enforce his appearance order, a Pentagon spokesman noted that the judge has forced a witness to testify and can find someone in contempt of court. The contempt option involves a multi-step process, including an opportunity to appeal and have a Pentagon official review the finding, and may be punishable by 30 days in a brig or jail and a $1,000 fine.
Sunday's plan carried everyone else involved in the case, including the civilian prosecutors and Navy Lt. Alaric Piette, a former Navy SEAL and the lone member of Nashiri's defense team whom the Saudi has met and accepted. Baker has assigned three other military lawyers to the case but none have sufficient experience to function as a death-penalty defender, called learned counsel, and two await security clearances to come to court.
Unusually, no survivors of the al-Qaida attack or family members of the sailors killed that day were attending the first week of the hearings. Some were expected in the second and third weeks.
One week of the hearings was being devoted to the closed-door cross-examination of a Guantanamo prisoner, Ahmed al Darbi. He testified against Nashiri in August, and expects to go home to Saudi Arabia early next year to serve out a 13-year sentence. Kammen was to handle the closed deposition. Yet to be seen, however, is whether Spath will insist that Piette do it.
