Prosecutors asked the military judge on Monday to hold a hearing and declare three civilian attorneys in contempt of the war court for failing to show up for the USS Cole case.
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, under his reading of the rulebook, they cannot leave the case without his permission and ordered them to Guantanamo on Sunday’s Pentagon shuttle. They refused.
Monday, prosecutors in a 22-page filing urged Air Force Col. Vance Spath to take sworn testimony from the Marine general who excused them from the case and require the attendance of the man accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the USS Cole.
Court was scheduled to start Tuesday morning.
Seventeen U.S. sailors died in the attack, and Abd al Rahim al-Nashiri, 52, could face military execution if convicted. As of Monday, the Saudi had just one attorney, a U.S. Navy lieutenant with no death penalty experience. The attorney notified the court that no hearing should go forward without an experienced death penalty defender, called a learned counsel.
Prosecutors, however, argued that the first order of business was to question Marine Brig. Gen. John Baker, the chief defense counsel for military commissions, who asserts he has the unilateral authority to “find good cause” and release war court defense lawyers. Then, the filing proposed, Baker should be given 24 hours “to gain compliance by civilian defense counsel” and have them appear at the war court.
Sunday, Kammen declared Spath’s order to appear “illegal,” and said the trio would not go to Guantanamo. He and the others resigned after obtaining an ethics opinion involving what Kammen called “government misconduct” — apparently involving an invasion of attorney-client privacy — that is so classified neither the public nor al-Nashiri can know what it is.
“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 façade of justice that is the military commissions running,” he said.
Prosecutors left open the possibility that other witnesses might testify by video link to build a court record. They recommended that Spath consider whether the lawyers’ decision to quit and not show up was “a chosen defense strategy.”
If so, they asked the judge to make a “record to rebut future claims of ineffective assistance.” After convictions, appellate lawyers declare ineffective assistance of counsel a reason to overturn a verdict or death sentence.
A judge’s contempt authority at the war court, as spelled out in the rules, covers actual disruptions at court and can be punished by 30 days in a prison or brig and a $1,000 fine. Under the rules, a person found in contempt has an opportunity to appeal the finding to the overseer of military commissions, called the Convening Authority.
But the prosecutors argued first that, by failing to come to court as ordered, the lawyers have “caused a qualifying disorder of these proceedings … without legal justification or excuse.” Moreover, they said that, if Spath builds enough of a record through witnesses, he need not give them a possibility to appeal and they be “punished summarily.”
Left unclear was how that would work. When a witness ignored an order to testify by video link last year, the judge sent U.S. marshals to take him from home in Massachusetts to bring him to a Virginia lockup until he testified the next morning. In that episode, a case prosecutor announced in open court, “I think we all agree that we cannot force somebody to come to the island.”
All three civilian attorneys are believed to be in the United States, and a war court judge has never before found anyone in contempt so has never ordered them to confinement.
Kammen has represented al-Nashiri as his death penalty defender for a decade; the two women came to the case later. Spath on Sunday night instructed both prosecutors and defense counsel to file pleadings by noon Monday on how to proceed. Al-Nashiri’s lone counsel, Navy Lt. Alaric Piette, declined to participate.
“The defense position is that substantive proceedings cannot occur without the presence of learned counsel,” he advised Spath’s staff Sunday night.
In an Oct. 24 filing, Baker advised Spath that he released the trio 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 them to appear in court, saying that while the general “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.”
The tug-of-war over authority to excuse the attorneys is based upon 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 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 gets to excuse the lawyer for good cause.
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