MIAMI — A military court review panel sided Friday with the judge in the USS Cole trial, ruling that defense lawyers had no authority to quit the case over ethics questions raised by their discovery of a secret microphone in their meeting room — developments that have stalled the war crimes trial since February.
A Pentagon spokesman had no immediate comment on whether, and how soon, pretrial proceedings would resume at Guantanamo in the death penalty case against Abd al-Rahim al-Nashiri. The court’s calendar shows the courtroom assigned to the USS Cole case for all of October. Al-Nashiri, a Saudi, is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the warship that killed 17 U.S. sailors and wounded dozens of others. He has been held by the U.S. since 2002 but was first charged in 2011.
The 57-page decision by the U.S. Court of Military Commissions Review also ruled that the chief defense counsel, Marine Brig. Gen. John Baker, did not have the authority to let the civilian lawyers quit the case a year ago. The judge, Air Force Col. Vance Spath, convicted Baker of contempt of court for doing so, fined him $1,000 and ordered Baker confined to his quarters for 21 days in a conviction that was subsequently overturned.
The three-member panel ruling was dated Thursday but released by the court clerk in the early hours of Friday morning, the 18th anniversary of the USS Cole bombing off Aden, Yemen.
A footnote in the ruling acknowledged the disconnect between Spath’s contempt finding and U.S. District Court Judge Royce Lamberth’s ruling that found a war court judge had no such unilateral contempt authority and overturned the general’s conviction.
The footnote said that the White House and Congress “may wish to consider legislation” that allows military commission judges to hold parties in contempt. The war court trying al-Nashiri was created in 2006 and then reformed by Congress in 2009 to provide defendants accused of death penalty offenses with Pentagon-paid defense lawyers with expertise in capital defense, called learned counsel.
It was also not immediately known what the three defense lawyers who quit would do. Learned counsel Rick Kammen currently has a restraining order in a U.S. District Court in Indiana, where he practices law, preventing the Pentagon from taking him into war court custody without prior notice.
His co-counsel, Rose Eliades and Mary Spears, are Pentagon-paid attorneys but have hired their own lawyers to represent them in the tug-of-war over whether they must defend al-Nashiri. A year ago, the three defense attorneys obtained an ethics opinion declaring their ostensibly privileged relationship with al-Nashiri compromised over the microphone discovery and other suspect monitoring episodes at Guantanamo.
On the discovery of the microphone — which was kept secret from the public and al-Nashiri for months — the court agreed with prosecutors that listening and recording devices discovered by the defense were a “legacy” of times in the past, and not used when al-Nashiri was meeting with his lawyers.
Kammen told McClatchy on Friday “this excuse has never been subjected to any adversarial hearing or scrutiny. Candidly, we do not believe this to be true because of other things we found that remain classified.”
As for whether Kammen would return to the case, he said he was considering whether to pursue the question in a federal court and would “be guided by my ethical obligations and the best interests of Mr. al-Nashiri.”
The new al-Nashiri case judge, Air Force Col. Shelley Schools, was assigned to preside in August after Spath submitted his papers to retire from service. She has yet to hold a hearing pending the higher court decision.
Spath froze all proceedings in the case until a higher court ruled on his contempt authority and other questions raised by the resignations, notably whether pretrial hearings could go forward without Kammen or another learned counsel. The review panel found it could.
When the hearings were suspended, al-Nashiri was defended by Navy Lt. Alaric Piette, a former Navy SEAL with no capital defense experience. Spath at one point advised him to engage in some “self-help” to get some death-penalty defense expertise.
The panel had earlier rejected another challenge by al-Nashiri’s military attorneys that sought to have Spath’s rulings in the case dismissed because he had pursued work as an immigration court judge before retirement. The hiring process takes a year or more, al-Nashiri’s lawyers argued, meaning Spath would have been seeking employment from the Department of Justice while presiding in the case, which has both Pentagon and Department of Justice prosecutors.
Friday, a federal appellate court in Washington D.C. agreed to hear the appeal of the Spath conflict-of-interest question.
The Pentagon has said that Spath officially retires from the Air Force on Nov. 1. But he is already listed as an immigration judge on the Executive Office of Immigration Review website, which disclosed he was sworn in on Sept. 28.
Separately, McClatchy filed a Freedom of Information Act request on July 17 for Spath’s Department of Justice hiring record, and was notified on Oct. 2 that the application for the information was listed as number 10 on the Executive Office of Immigration Review’s “complex” FOIA list.
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