In a surprise move, Secretary of Defense Jim Mattis on Monday fired the top official overseeing the trials of the five men accused of plotting the 9/11 attacks and other alleged war criminals held at Guantanamo.
It was not immediately known what caused Mattis to dismiss Harvey Rishikof, an attorney with experience in national security law who, unlike earlier war court overseers, had no U.S. military experience. Mattis named Rishikof convening authority for military commissions on April 3.
Gary Brown, the legal adviser for military commissions, also lost his Pentagon job. He was temporarily replaced by two lawyers from his staff.
The decision had no impact on ongoing war court proceedings, said Tom Crosson, a spokesman for the Department of Defense, because Mattis designated the general counsel at the Defense Logistics Agency, Jim Coyne, as acting convening authority. Coyne is a retired Army colonel who has served as DLA General Counsel since May 2016.
The Office of the Convening Authority is responsible for approving cases for trial, plea agreements, reviewing convictions and sentences — and resourcing defense teams.
Crosson said the two men were removed from their jobs Monday. Mattis “rescinded the designations” of Rishikof as the convening authority for military commissions and as director of that office. Additionally, he said, William S. Castle, acting general counsel, rescinded Brown’s designation.
Rishikof has been responsible for several recent controversial decisions, including suspending the contempt of court sentence of the chief defense counsel, Marine Brig. Gen. John Baker. Without explanation, his office also rejected a proposed charge sheet for three former CIA captives held here on suspicion of plotting terror attacks in Southeast Asia, including the grisly 2002 Bali nightclub bombing.
President Donald J. Trump has also been critical of the pace of trials by military commission. He tweeted on Nov. 2 that he had changed his mind about sending a suspected terrorist captured in New York to Guantanamo for trial because “statistically that process takes much longer than going through the Federal system.”
Rishikof also has recommended that the chief of the prison guard force build a new compound at Guantanamo for attorney-client meetings after Baker and others said the privileged conversations had been compromised.
In court Monday, a prosecutor in an al-Qaida commander case described the problem cast by defense attorneys as an ethical conflict as “a red herring that has been rotting in the Guantanamo sun for months.”
Questioning whether somebody was eavesdropping on privileged conversations is “a speculative tactical decision” by the overarching defense organization led by Baker, prosecutor Vaughn Spencer argued.
Defense attorney Adam Thurschwell replied: “It’s some other kind of fish. And it stinks. And it’s there and has to be resolved.”
The commissions have been clouded by uncertainty since the entire civilian defense team resigned from the USS Cole death penalty case, leaving an inexperienced former Navy SEAL in court to defend alleged bombing mastermind Abd al Rahim al-Nashiri.
Although Rishikof was appointed at the start of the Trump administration, his name went forward as a candidate for the job toward the end of the Obama administration. He was removed less than a week after the president signed an executive order formally rescinding Obama’s closure order for the prison.
In it, he tasks Mattis with crafting policy for bringing new captives to the detention center that currently houses 41 captives, 10 of them with military commissions cases.
The decision also comes two weeks before a captive turned government witness is due to return to Saudi Arabia to serve a terrorism sentence under a plea agreement worked out during the Obama administration and approved by an earlier convening authority.
The job of acting legal adviser went to Mark Toole, a long-serving deputy in that office. One duty he won’t take over is handling matters related to the USS Cole case, where al-Nashiri awaits a death penalty trial. A different deputy legal adviser, Air Force Col. Matthew van Dalen, was assigned to provide Coyne with legal advice on the Cole case.
The military judge in that case disqualified Toole in 2015 over his role in an earlier attempt by the Pentagon to order the war court judges to live permanently at Guantanamo until their cases are over — meaning they would live here for years.
The Pentagon withdrew that order after the Sept. 11 terror trial judge suspended that case because the move-in order created an appearance of illegal meddling in the independence of the judiciary known as unlawful command influence.
Upon learning about the latest development, veteran war court watcher Stephen Vladeck, a University of Texas law professor, said it was too soon to know if the Rishikof firing would lead to allegations of unlawful command influence.
“It’s hard to know without knowing why he was fired,” Vladeck said by email. “But it’s not at all difficult to imagine that at least some of the commission defendants will use this as further proof that Secretary Mattis is exercising too much control over the proceedings.”
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