April 11, 2018

Military Commission Proceedings on Indefinite Hold After Defense Team Withdraws

Emily Olson-Gault, Director

Abd Al-Rahim Hussein Al-Nashiri is accused of masterminding the attacks on the U.S.S. Cole in 2000 that killed 17 people and injured dozens more. Mr. Al-Nashiri was taken into custody in 2002, and in 2011 a Military Commission was convened to try his case, which has been in various stages of pretrial proceedings since that time and has encountered numerous delays. The most recent disruption started in the fall of 2017, when all but the most junior of Mr. Al-Nashiri’s defense counsel withdrew from the case, citing ethical concerns. After months of subsequent legal wrangling about whether the proceedings could continue without the presence of “learned counsel,” the trial judge, Air Force Col. Vance Spath, ruled on February 16, 2018, that all proceedings would be on hold indefinitely.

In October 2017, the Chief Defense Counsel, who oversees capital defense assignments in military proceedings, granted permission to three of Mr. Al-Nashiri’s civilian defense counsel to withdraw from the case. The attorneys argued that they had an ethical obligation to withdraw based on then-classified issues that were affecting their ability to effectively communicate with and represent their client. Reporters covering the proceedings had long speculated that these classified issues involved alleged government intrusion on confidential attorney-client communications. Because the information was classified, however, the attorneys were unable to inform their own client that they believed their conversations were being monitored and recorded.

Col. Spath found that it was improper for the Chief Defense Counsel to permit the withdrawal. He ordered the Chief Defense Counsel confined for 21 days for refusing to recall the attorneys who had withdrawn and issued several subpoenas ordering former defense counsel to return to court to defend Mr. Al-Nashiri. Those actions have spun off separate legal action in U.S. federal courts, seeking guidance about the scope of the military judge’s authority to order the defense attorneys to return. Several legal experts provided testimony to the court about the propriety of the lawyers’ withdrawal and the need to appoint new qualified defense counsel before proceeding with the trial and other preliminary proceedings.

The sole remaining attorney, Navy Lt. Aleric Piette, graduated from law school in 2012 and has never tried a capital case or received any training in capital defense. The ABA Guidelines for capital defense counsel, as well as the federal statute governing capital counsel appointment and numerous other state-level standards, require lead counsel in a capital case to have several years of capital defense experience and to have participated in extensive continuing legal education programs. Lt. Piette openly concedes that he is not qualified to lead the defense team and has made extensive arguments that the case cannot move forward until new “learned counsel” is appointed.

In mid-February, after another unsuccessful attempt to order one of the withdrawn defense attorneys to appear, Col. Spath abated the proceedings “indefinitely,” pending an order from a superior court to resume. He spoke at length from the bench before suspending proceedings, expressing clear frustration with the situation and his inability to compel defense counsel to appear. While continuing to assert that he was only required to provide qualified defense counsel to the defendant “to the extent practicable,” Col. Spath acknowledged that the proceedings were at an “apparent standstill” until Mr. Al-Nashiri received an “adequately resourced defense.”  He refused to dismiss the case, however, finding that doing so would “reward defense counsel” for what he perceived to be a strategy designed to disrupt the proceedings.

Shortly after this ruling by Col. Spath, the government filed a notice of appeal in the U.S. Court of Military Commission Review (CMCR). Lt. Piette responded by filing a motion to dismiss the government’s appeal, arguing that the court lacked jurisdiction to hear an interlocutory appeal. The motion to dismiss noted that Col. Spath had explicitly refused to dismiss the principle case and that a military defense attorney who had previously represented Mr. Al-Nashiri (who was not part of the team that withdrew in 2017) had been ordered to return to the case. The return of this attorney would presumably allow the proceedings to resume. That motion to dismiss was opposed by the government on multiple grounds and is currently pending before the CMCR.

Meanwhile in March 2018, after more than half a year of efforts, and several weeks after Col. Spath abated all proceedings, the government declassified the fact that there were several “unconnected” “legacy” recording devices in the room where Mr. Al-Nashiri met with his counsel, but the government denied using those devices to monitor or record conversations. Richard Kammen, one of the experienced capital defenders who withdrew from representation, has told reporters that the declassified information paints an incomplete and misleading picture of what actually led to the withdrawal.

For detailed coverage of the Al-Nashiri case and Military Commissions proceedings, follow Carol Rosenberg at @carolrosenberg or miamiherald.com/guantanamo.

Emily Olson-Gault, Director