On November 13, 2017, Project Director Emily Olson-Gault testified as a subject matter expert on the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”) in a Guantanamo Military Commission proceeding for Abd al-Rahim al-Nashiri, who is accused of orchestrating the U.S.S. Cole bombing in 2000.
Ms. Olson-Gault’s involvement in the case came after civilian capital defense attorneys for Mr. al-Nashiri resigned, citing classified concerns regarding attorney-client privilege. Their departure left only a junior military lawyer, Navy Lt. Alaric Piette, who has no prior death penalty experience or training, as Mr. al-Nashiri’s sole counsel. Lt. Piette filed a motion to halt the tribunal’s proceedings until new qualified capital counsel could be appointed, but the judge denied the motion, finding that qualified counsel was not required for pretrial matters. After Lt. Piette requested reconsideration of this decision and attached a supporting affidavit written by Ms. Olson-Gault, the court asked her to testify to provide expertise about the ABA Guidelines and their relevance to military commission proceedings.
Ms. Olson-Gault testified that the ABA Guidelines require qualified capital counsel to lead the defense effort at every stage of a death penalty case, including during pretrial activities. She explained that a less experienced lawyer can participate as part of a larger capital team, but that team must also include qualified lawyers, including qualified lead counsel who is responsible for the work of every member of the defense team. She also provided background on how courts have used the ABA Guidelines and spoke about legislative history that suggests Congress intended for the military commissions to be guided by the ABA Guidelines when appointing defense counsel in capital cases.
The court later issued findings that her testimony was credible. It acknowledged based on that testimony that the ABA Guidelines have additional relevance in Military Commissions proceedings because of Congress’s explicit directive that the Secretary of Defense consider them when creating the rules for the appointment of capital defense counsel.