End 16 Years Of Injustice

The Complete Collapse of Abd Al-Rahim Al-Nashiri’s Military Commission Trial at Guantánamo

A photo of Guantánamo prisoner and "high-value detainee" Abd al-Rahim al-Nashiri, whose case has caused a meltdown at the military commissions.

By Andy Worthington, March 8, 2018

It’s three weeks since a judge in Guantánamo’s military commission trial system, Air Force Col. Vance Spath, indefinitely halted proceedings in one of the trials’ only active cases — that of Abd al-Rahim al-Nashiri, a Saudi accused of masterminding the bombing of the USS Cole in 2000, when 17 U.S. sailors were killed.

Carol Rosenberg of the Miami Herald, who first reported the story, announced that Col. Spath "shut down the proceedings because of his inability to get defense lawyers back to the death-penalty case." In October, three civilian lawyers quit the case for reasons that were not specified, but that observers presumed related to them discovering that they were being spied on by prosecutors — or, at least, by the military authorities at Guantánamo, on whose behalf the prosecutors are working.

I reported this story in November, when, adding insult to injury, Judge Spath briefly imprisoned Brig. Gen. John Baker, the Chief Defense Counsel of the military commissions, for refusing a request by him to reinstate the defense team — Rick Kammen, Rosa Eliades and Mary Spears — even though Brig. Gen. Baker was entirely justified in doing so. The loss of Kammen was a particular blow, as he is a death penalty expert, who has been on the case since al-Nashiri was first charged nearly ten years ago, and, by his own reckoning, has "devoted at least 10,000 hours working on the case, traveled to at least seven foreign countries in trial preparation and to Guantánamo 50 times to meet with Nashiri or appear in court," as Carol Rosenberg explained in October.

In my article at the time of the lawyers’ resignation, I drew on an article in Slate by Philip Carter, a senior fellow at the Center for a New American Security and adjunct professor of law at Georgetown University, who briefly served as Deputy Assistant Secretary of Defense for Detainee Policy under President Obama. I wrote:

After Brig. Gen. Baker’s imprisonment, lawyers working for him sought a writ of habeas corpus, "perhaps the first time in history such a writ has been sought on behalf of an active duty general officer," as Carter explained, adding that District Court Judge Royce Lamberth expressed concerns that Baker "had no obvious appeals route because he himself was not subject to the commissions’ jurisdiction."

[On November 3], the commissions’ convening authority, Harvey Rishikof, decided to release Baker from his short-lived but significant imprisonment, although he "merely deferred Baker’s punishment without addressing any of the more basic tensions laid bare by Baker’s actions and Spath’s response," as Carter put it, adding that al-Nashiri’s pre-trial hearing then continued, "but with just one relatively junior Navy lawyer, former Navy SEAL and 2012 Georgetown law school graduate Lt. Alaric Piette, representing the accused."

Lt. Piette has no experience of death penalty trials, and in a follow-up article, 'The Latest Scandal of the Military Commissions at Guantánamo: A Death Penalty Case Without a Death Penalty Lawyer,' I cross-posted an article by Cassandra Stubbs, the director of the ACLU Capital Punishment Project, who explained how capital cases require the presence of a lawyer with experience of death penalty legislation, and linked to a letter, drafted by the ACLU and signed by 150 death penalty lawyers and law professors, which, as I put it, "register[ed] the capital defense community’s outrage over the legal breakdown, which clearly violates federal and international law."

In another twist, defense secretary James Mattis then fired Harvey Rishikof, although for reasons that have not been explained, and which may not involve his perceived leniency towards Brig. Gen. Baker. It has been suggested, for example, that he was working towards a plea deal for the five men accused of involvement in the 9/11 attacks, the only other ongoing capital case, which is also caught up in seemingly endless pre-trial hearings that seem to go round in circles.

Back in November, my article drawing on Philip Carter’s assessment continued as follows:

As a result of this epic legal disaster, Philip Carter concluded, accurately, that the military commissions "have gone off the rails and broken down so completely that they cannot be repaired." As he also stated, "They now labor under the weight of ethical dilemmas like this, years of delay, and confusion about basic rules that make any effort to move them forward impossible."

He also explained, "All three branches have tried to fix the Guantánamo war courts, and yet, even in their current incarnation, these tribunals are failing. It is time to end the charade of justice at Guantánamo and terminate these trials. The defendants in the dock at Guantánamo should face prosecution by a properly constituted American court — or none at all, and thus be detained under the laws of armed conflict. There simply is no substitute for justice and the rule of law."

Judge Spath on al-Nashiri’s trial: "I am abating these proceedings indefinitely"

It took until February 16 for Judge Spath himself to publicly agree with Philip Carter’s assessment, when, as Carol Rosenberg explained, "on the last day of a weeklong hearing in which Eliades and Spears ignored prosecution subpoenas to appear at court by video feed, Spath assembled defense and prosecution attorneys in the court and offered a 30-minute monologue."

She added, "He listed his frustrations at having his orders ignored, uncertainty over his authority raised by the Marine general’s decision-making and inaction by Pentagon officials to help him. At one point he said he was considering retiring from the Air Force, then declared that he needed clear answers on how to proceed. 'I am abating these proceedings indefinitely,' he said twice, at one point adding: 'We’re done until a superior court tells me to keep going.'"

Rosenberg then stated that Col. Spath "walked off the bench at 10:12 a.m., declaring: 'We are in abatement. We are out. Thank you. We’re in recess.'" A complete transcript of Col. Spath’s statement is here, and for further information check out Amy Davidson Sorkin’s assessment in the New Yorker.

In one key passage highlighting Col. Spath’s frustrations, Davidson Sorkin noted that he said that, "in his twenty-six years of service, 'I’ve never seen a judge advocate show up in Class B’s time after time.' Class B’s are less-than-dress uniforms; Spath had, apparently, spotted officers assigned to the Military Commissions Defense Organization, which manages the cases for defendants like Nashiri and five accused 9/11 plotters, wearing them in his courtroom. Spath continued, 'I’m not oblivious. I know what that says. What little respect you have for the commission is obvious. A short-sleeve shirt, no tie, no coat; I get it. That’s the message. That’s been the message from the defense for five months.'"

She also wrote:

On an emotional level, Spath blamed the defense for the resulting deadlock. "They don’t follow orders; they don’t follow direction; they don’t obey commission regulations, or rules, or subpoenas, as we saw," he said. They had exhibited "lawlessness" and "contemptuous behavior"; they had "scoffed at my authority." He had been, it seemed, dismayed when a Pentagon bureaucrat whom he’d had testify … by video link, had mentioned that there might be a time when commission lawyers would defy an unethical order. Spath thought that the bureaucrat was conflating the idea that military officers could decline to follow unlawful orders with the obligation of lawyers to listen to judges. That confusion, it’s worth noting, is built into the military commissions — the relation between military and civilian rules has never been clear. But Spath found it out of proportion, in a way that he seemed to take personally. "I hope cool minds reflect on what my orders have been," he said. "I’m not ordering the Third Reich to engage in genocide. This isn’t My Lai." All he was doing was telling the lawyers to listen to him and get back in court, he said. "Those are the extent of my orders. Not war crimes, people."

She added, "When a judge starts berating the courtroom to remember that he is not a Nazi, cool minds are not reflecting, on any side. Spath seemed to recognize this. The night before, he said, he had not slept. 'I went to the gym. I thought maybe the treadmill would either calm me down—which it has, of course. Give me more—more reflection. It did. And I went back and looked again, and looked again.'"

Davidson Sorkin also explained:

What he found is that, whatever his feelings about the defense, on a legal level the blame — and the solution — lay elsewhere. There were, he said, "questions that we need answered, frankly, from a court superior to me." Spath thought that Baker’s reading of the Military Commissions Act could lead to absurd outcomes, because the defense could then bring the trial to a halt anytime it wanted to, by denying the accused representation. But, he said, maybe Baker was reading the law correctly; maybe Congress, in other words, had put together something that sloppy and absurd and ill-functioning. (It wouldn’t be the first time.) "We need somebody to tell us, is that really what that says, despite, obviously, every other court system in America thinking differently." With that, Spath seems to have glimpsed what many critics of the military-commissions law have argued all along: the proceedings had revealed "significant flaws" in the military-commission process, Spath said. "We’re going to continue to spin our wheels and go nowhere until somebody who owns the process looks in and does something."

Revealed: the "smoking gun" in the lawyers’ resignation

Yesterday, in another breaking story for the Miami Herald, Carol Rosenberg reported on the specific reasons for the lawyers’ resignation last fall, which will only add to the woes of those somehow hoping to fix the commissions. Rosenberg stated that, in a 15-page prosecution filing obtained by the Miami Herald, it was revealed that al-Nashiri’s defense lawyers "quit the capital case after discovering a microphone in their special client meeting room and were denied the opportunity to either talk about or investigate it."

The revelation came in what Rosenberg described as "a prosecution filing at the U.S. Court of Military Commissions Review signed by the chief prosecutor for military commissions, Army Brig. Gen. Mark Martins, and three appellate lawyers on his staff," as part of an effort on their part to get the review panel to order Judge Spath to resume the case. The prosecutors revealed that "the listening device that lawyers discovered in an early August inspection of their special meeting room was a legacy of past interrogations — and, across 50 days of ostensibly confidential attorney-client meetings, was never turned on."

The filing specifically states that, after the three lawyers quit, prison workers "removed flooring, walls, and fixtures" in the meeting room used by the defense lawyers, and "confirmed that legacy microphones, which were not connected to any audio listening/recording device nor in an operable condition, were removed."

However, Rick Kammen told the Miami Herald that the prosecution account was "outrageous" and "really grotesque selective declassification" designed to permit "some portion of the truth to seep out, but only in ways that the government feels will help it."

He explained, as Rosenberg described it that, at the time of the resignations, "he was only allowed to say that something had occurred, which he could not describe," and that, although "he sought discovery from the judge in order to investigate the episode as well as a hearing," his requests were denied. As Rosenberg added, even Judge Spath’s denial is classified.

Kammen told the Herald, "Our concerns were much greater than what they appear to admit was there." He added, however, that even the limited information disclosed by the prosecution "demonstrates that either Colonel Spath was lied to by the government or in many of his statements he was lying to the public, the press and the victims in a way that was absolutely shameful and disgraceful — by casting it as fake news."

Rosenberg also explained that the prosecution’s filing is not part of its appeal, but merely a response to "a Feb. 28 bid by Nashiri’s lone defense attorney, Navy Lt. Alaric Piette, to block the appeal on jurisdictional grounds," with the prosecution adopting Judge Spath’s assessment of Brig. Gen. Baker’s refusal to reinstate the three lawyers as a "strategy" to create a "triumphant stalemate" that "has proven destructive of the rule of law," which succeeded in "so handcuffing and frustrating the military judge that he has indefinitely abated the proceedings below and is contemplating retirement from active military service because of his shaken faith in the law and what it means to be a lawyer."

Despite the prosecution’s efforts at papering over the scandal, those scrutinizing the commissions are unimpressed, wondering, as Rosenberg put it, "why the discovery was considered a national security secret in the first place."

Stephen Vladeck, a University of Texas law professor, asked, "If this really was an innocuous slip-up with unplugged microphones, why has the government apparently tried so hard to cover it up?" and, in a tweet, Hina Shamsi, the director of the American Civil Liberties Union’s National Security Project, asked, "what else is being kept secret?" Vladeck also pointed out that the disclosure "calls into serious question the legal ruling at the bottom of this dispute, in which Judge Spath concluded that there was no impermissible interference with the relationship between the defense attorneys and their client."

Crucially, Rick Kammen also explained that "he was still bound by his understandings of what was classified at the time he resigned to not say what is missing in the prosecution account." Speaking off the record, two defense attorneys told Rosenberg that "[o]ne thing people with war court security clearances were told at the time … was that they were forbidden to say the word 'microphone.'" The lawyers added that "[o]ther words were declared taboo in discussing attorney-client meeting sites," but they "declin[ed] to say the words because they may still be classified."

As Rick Kammen put it, "It’s good to see the truth beginning to come out, but the reality is more than what they’ve declassified."

Expect to hear more in future as this story refuses to go away — and as the military commissions continue, very evidently, to not be fit for purpose. Will someone with respect for the law finally put the commissions out of their misery, so the cases can be moved to federal court, where they belong?