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November 15, 2017

Al Nashiri Proceedings Spotlight Legal “No Man’s Land” at Guantanamo

Last week, I traveled to Guantanamo Bay to observe proceedings in the case of accused USS Cole bomber Abd al Rahim al Nashiri. What should have been a relatively straightforward week of prosecution witness testimony and pre-admission of evidence was instead a window into the military commissions’ dysfunction.  

For the last two weeks, Nashiri’s case has been overshadowed by the continuing controversy over the resignation of his civilian defense team, including the required death penalty attorney, because of concerns that they can no longer ethically represent their client due to government interference with confidential attorney-client communications.

But the judge refused to accept their resignation and subsequently sentenced the Chief Defense Counsel, Brigadier General John Baker, to confinement in a Guantanamo trailer park for contempt when he refused to reverse his decision to let the team resign.

Judge Vance Spath was noticeably aware that his reaction to the defense counsels’ resignation cast a public spotlight on the military commissions’ dysfunction. Spath repeatedly addressed those “in the back” of the courtroom—trial observers and other nongovernmental organization representatives, like me.

He said he hoped “objective observers” would agree with his assessment of defense counsels’ resignation—that they had intentionally abandoned their client to serve some strategic goal—and lamented that he could not persuade those with “an agenda.” But it seemed that the judge himself had an agenda to defend the legitimacy of the process at Guantanamo, even if it meant compromising the defendant’s right to learned counsel in a death penalty trial.

The Nashiri defense counsel saga is the quintessential example of Guantanamo as a legal no-man’s-land. In this ad hoc system, with its mobile trailer courtroom, even a question as seemingly simple as who decides whether an attorney may resign sends the commission into a tailspin. The judge disagrees with defense counsel over which rules apply, how they should be interpreted, and who holds authority over what and whom. So a military general winds up being held in contempt of court and sentenced to confinement in his barracks.

It’s unclear whether the military commission even has jurisdiction over the Nashiri case, as none of the charges stem from conduct that occurred during an armed conflict. Unfortunately, the Supreme Court declined to examine this foundational question, meaning the commission’s authority to hear the case won’t be resolved until after the trial concludes.

To make matters worse, because the findings of one military commission proceeding have no precedential value for others, every issue is a matter of first impression, and the judge must fumble along until federal judges step in to sort it out. Meanwhile, Judge Royce Lamberth—the D.C. federal judge with jurisdiction to review Nashiri’s case—wants to let the commissions process correct itself, even though it’s showing no signs of doing so.

Spath warned last week that if a federal judge tells him he has no contempt authority, then he will “just pack up and go home.” Of course, a ruling that Spath did not have the authority to hold Baker in contempt would not mean that he has no contempt authority whatsoever. Instead, Spath’s warning felt like a set-up for Lamberth to defer. Constant uncertainty over the applicable rules makes such deference more problematic.

On Monday morning, Spath questioned Emily Olson-Gault, an expert witness from the American Bar Association, about the model legal ethics rules’ requirement for learned counsel in capital cases. Presumably Spath wanted the witness to explain that non-capitally qualified counsel can cross-examine witnesses. Olson-Gault’s opinion, however, aligned more closely with that of Lieutenant Alaric Piette, the sole Nashiri defense lawyer in court last week.

Piette told Spath that every issue in a capital case relates to capital issues, including the cross-examination of evidence foundation witnesses. Spath disagreed, calling this the “nuts and bolts” of trial lawyering. Olson-Gault explained that the ABA guidelines, which provide an ethical floor for lawyering, reject the notion that because a lawyer is qualified to do something in a non-death penalty case, he is necessarily qualified to do the same in a death penalty trial.

Spath responded by dismissing any binding effect of the ABA guidelines: “We agree they’re just guidelines.” Unfortunately, it appears that a federal judge will need to enlighten Judge Spath about the minimum rules and procedures required at Guantanamo.

With every passing week, the military commissions proceedings become more absurd. This level of disorganization and confusion is tragic when justice for the families of U.S. troops killed in the USS Cole bombing is on the line. If Nashiri’s case had been tried in a federal court, it could have been wrapped up years ago.