Last Week at the Military Commissions, Feb. 12-16: Al-Nashiri Grinds to a Halt

The military commission in United States v. Al-Nashiri reconvened in open session this past week before being abruptly abated on Feb. 16, as previously reported on Lawfare. The hearings focused on the defense team’s staffing issues as the two civilian Defense Department lawyers detailed to the case—Rosa Eliades and Mary Spears—and the defense team’s learned counsel—Richard Kammen—continued to refuse to appear before the commission. All three have cited an alleged breach of attorney-client confidentiality but have yet to present that argument directly to the presiding judge in the case, Col. Vance Spath. Spath contemplated measures to forcibly compel the appearance of the two DOD lawyers while also conveying his frustration with the Military Commissions Defense Office (MCDO) to Lt. Alaric Piette and Col. Wayne Aaron, defense counsel and chief defense counsel, respectively.

Pretrial admission of evidence also continued throughout the week as 12 witnesses testified, primarily regarding evidence gathered during “land searches” in and around Aden, Yemen. But on Feb. 16, Spath abated the proceedings “indefinitely until a superior court orders [Spath] to resume,” citing a need for intervention by higher legal authorities to address the Pentagon lawyers’ disobedience of the commission’s orders.

Al-Nashiri’s Presence at Trial

The defendant, alleged USS Cole bomber Abd al-Rahim al-Nashiri, was only present for trial on Feb. 12. He voluntarily waived his right to be present at trial Feb. 13–16, alternately stating that he was tired, did not wish to travel to the courtroom in a van rather than a bus, or only wished to be present for the first and last days of the week’s hearings. Each day, al-Nashiri signed a statement that he understood he had a right to be present and an unidentified U.S. Army major testified to the voluntary nature of al-Nashiri’s action.

Piette contended on Feb. 16 that al-Nashiri “certainly” decided to remain out of court because he did not want to ride in the van used for his transport. Spath agreed that the mode of transport likely affected al-Nashiri’s decision and would be a concern if it continued. However, he found al-Nashiri’s decision not to appear was still voluntary and knowing.

Defense Team Staffing: Defense Department Lawyers

At the beginning of the Feb. 12 session, Spath noted that Eliades and Spears, the civilian Pentagon lawyers, were again absent and that there was no indication that they were planning to comply with Spath’s orders to appear. Arguing that they must appear, he cited his authority to compel them, their professional ethics as lawyers and their status as civilian government employees. Spath reiterated that Brig. Gen. John Baker, chief defense counsel of the Military Commissions Defense Organization, had improperly released Eliades and Spears from the case. Spath had ordered them to remain detailed to the case, and he maintained that his directive was paramount.

Spath and Aaron discussed the defense team’s staffing on Feb. 12, but Aaron first objected, as he had previously, to the idea that the court could order him to be present. He asked the court to state for the record on what grounds his presence could be compelled. Spath responded that if Aaron thinks Spath doesn’t have the authority to compel him to appear, he should violate the orders at his own risk.

Aaron disagreed with the prosecution’s view that Chapter 13-4 of the Regulation for Trial by Military Commission provided for the compelled testimony of civilian government employees like Eliades and Spears without a subpoena. Nonetheless, he had taken steps to get the attorneys to respond. Aaron mentioned that “employment-related legal issues” complicated his ordering them to appear, which Spath acknowledged.

Col. John B. Wells, for the prosecution, said he was appalled by the “mismanagement by [the defense organization’s] chain of command” surrounding Eliades’s and Spears’s failure to appear. Wells stated that the relationship between chief defense counsel in the MCDO and the military commission’s convening authority is unclear. He also compared Baker’s actions in challenging the commission’s orders to picking up “a loaded gun,” and pressed the judge to make findings of fact regarding the defense team’s “misconduct” which might lead to action for disbarment under Rule 109 of the Rules for Military Commissions (RMC). In response, Spath noted that he had already made multiple findings of fact orally at trial rather than through written submissions.

On Tuesday, Feb. 13, Eliades and Spears did not appear, and conveyed through their lawyers to the prosecution that they would not comply with the subpoena and that it was an abuse of subpoena power. Early on Tuesday, Spath raised the possibility of issuing writs of attachment to compel them to appear. He acknowledged that an arrest would counterproductively prevent them from representing their client by creating an adversarial relationship and jeopardizing their security clearances and jobs. Spath said the writs may be necessary anyway based on Eliades’ and Spears’ behavior towards the commission.

At the end of the day on Feb. 13, the court discussed a statement from Baker about excusing Eliades, Spears, and Kammen, the learned counsel. Spath said that by the logic of the letter, Piette could also be excused. Spath reiterated his view that the defense team’s approach was strategic and said he planned to issue writs of attachment to compel Eliades and Spears to appear Feb. 15 or 16. But on the morning of Feb. 14, reacting to overnight reporting on his statements, Spath stepped back and emphasized that he had ordered only draft writs of attachment for Eliades and Spears and had not yet decided to issue the writs.

In response to Spath’s concerns, Paul Koffsky, the Defense Department's deputy general counsel for personnel and one of Aaron’s supervisors, appeared by video conference on Feb. 15. In questioning Koffsky, Spath asserted—as he has before—that, despite their concerns about alleged breaches of attorney-client confidentiality, Eliades and Spears must continue to represent their client because Spath had ordered them to do so. He cited Rule 1.16 of the Model Rules of Professional Conduct as directing, “if a tribunal orders you to continue representation, even if good cause has been shown not to, you have to continue representation.” Koffsky, in rebuttal, referred to a “canon of professional responsibility that allows individuals before … the commission, who believe the order is invalid openly to state such and not comply with the order[.]” Following Koffsky’s testimony, Spath concluded that the defense team’s supervisory chain did not plan to take any action to force compliance with his orders. With this in mind, the judge began considering solutions for what he identified as a poorly functioning system, eventually leading to his abatement of proceedings.

Defense Team Staffing: Learned Counsel

The continuing absence of learned counsel was a significant challenge throughout the first two days of hearings. On Feb. 12, Spath insisted that Aaron had a responsibility to complete the turnover on the defense team. Aaron noted that it was learned counsel’s responsibility and right to determine when and if counsel should be detailed, and that without learned counsel, Aaron could not make those decisions. Spath rejected this notion, arguing that learned counsel’s role in detailing staff had already changed because Baker—not the learned counsel, Kammen—had excused Eliades and Spears. Aaron clarified that the chief defense counsel signs the memo detailing or relieving attorneys, but only in accordance with the wishes of learned counsel. He told the judge that he was “interfering with my ability to exercise my independent judgment as to what attorneys would best constitute the team for this client.” Spath said that Aaron should follow his ruling about learned counsel and proceed with staffing the team on his own.

Wells pointed to a letter from Baker saying that Kammen would bill hours for staying on the case until new learned counsel was appointed. This, Wells argued, showed that the defense was contradicting itself about the presence of learned counsel on the defense team. Spath reiterated that the defense team’s actions were a strategic decision to consciously under-resource themselves. He noted that he was uncomfortable with his involvement in the issue, but nevertheless he committed himself and the trial to moving forward, even if slowly and deliberately, in the interest of justice.

Spath then returned to his admonition to Piette during the previous session that he should pursue “self-help” to prepare himself to conduct al-Nashiri’s defense on his own if necessary. Specifically, he asked Piette if he had made any efforts to obtain capital defense training. Piette said he had, but that some of the available training sessions conflict with the commission hearings. Spath recommended two training sessions to Piette, and further noted that multiple jurisdictions have no learned counsel requirement. If Piette wanted to validate the propriety of the defense’s actions, he could apply for a stay or seek assistance from an appellate court; in the meantime, Spath’s ruling that the defense’s refusal to participate was a deliberate and unjustified strategy held.

Also during the Feb. 12 session, the defense confirmed that it would not cross-examine Ahmed al-Darbi, a fellow detainee who testified for the prosecution. Piette explained that because al-Darbi was the “star witness” for the prosecution and so critical for their case, the cross-examination needed to be handled by learned counsel. Spath again rejected that position, saying Piette was qualified counsel and that should be sufficient.

Defense Team Staffing: Alleged Breach of Attorney-Client Privilege

On Feb. 12, Spath said there was no reason for the defense lawyers to withdraw and called the alleged intrusion into attorney-client conversations “fake news.” He asked Wells and the prosecution team if they were aware of any intrusions into attorney-client privilege.Wells responded that the issue was “a red herring” and distinct from the defense team’s staffing issues and behavior regarding Spath’s orders to appear.

Spath mentioned that the court’s chief information security officers were attempting to declassify the circumstances of the alleged intrusion in an effort to release information for public transparency. On Feb. 15, the judge offered those officers’ assistance in expediting declassification of information surrounding the alleged intrusion upon privilege. The parties disagreed over what needed to be declassified in order to convey the whole truth of the matter. In response, Spath informed both sides on Feb. 16 that the information security officers would no longer assist either side in declassification.

Evidence and Chain of Custody Verification

The commission continued with pre-admission of physical evidence, hearing from twelve witnesses throughout the week. Garrett McKenzie, Stephen Krueger, David Hackmeyer, Jeffrey Miller, Edmund Cronin, Phillip Kissane, Kelly Van Arsdale, Tracy Kneisler, Dayna Sepeck, Lisa Locascio, Dan Gaston, and Ignacio Mendizabal testified to their role in the collection of evidence related to the USS Cole bombing. Van Arsdale and Mendizabal testified to chain of custody of evidence collected in Yemen and Pascagoula, Mississippi. The other ten witnesses testified regarding procedures in evidence collection and searches on land in and around Aden, Yemen. This testimony involved identification of personnel and exhibits in numerous photographs contemporaneous with the searches. Multiple witnesses highlighted the time constraints which security concerns imposed on the searches. Yemeni law enforcement officers had already searched certain areas, seizing and then replacing some items before the witnesses conducted their searches. In some instances, Yemeni officials also handed over evidence directly. Three witnesses—Miller, Kneisler, and Cronin—were recalled throughout the week to clarify their testimony and identification of exhibits in photographs.

The defense did not cross-examine any witnesses, in keeping with Piette’s position that he cannot cross-examine witnesses given the absence of death penalty learned counsel.

Abatement of Proceedings

Before Spath recessed proceedings on Feb. 15, he indicated that he would consider overnight how to proceed with the trial, surveying options including issuing writs of attachment for Eliades and Spears, requesting Defense Secretary James Mattis to testify, abating the proceedings until ordered to continue by a higher court, or dismissing the proceedings entirely. Spath said the proceedings should not continue without resolving whether or not defense organization personnel would be subject to legal sanction for failing to obey his judicial orders.

On Feb. 16, Spath expressed frustration with the defense attorneys’ flouting of his orders and Col. Aaron’s deportment before the court. He again took issue with Koffsky’s assertion that Pentagon lawyers had an ethical obligation to refuse Spath’s orders. Spath mentioned he had considered at length dismissing the proceedings, but did not wish to “reward[ ] the defense for… clear misbehavior and misconduct.” After a 28-minute session, Spath abated the proceedings until further notice, stating, “[w]e’re done until a superior court tells me to keep going.”