Updates from the Military Commissions, 11/17: Attorney-Client Confidentiality and the Duty to Withdraw

On Nov. 17, 2017, the military commission in United States v. al-Nashiri reconvened for the purpose of receiving testimony from Professor Ellen Yaroshefsky, an ethics advisor to defendant’s learned counsel Richard Kammen, who had previously resigned over undisclosed ethics concerns. The defendant, Abd al-Rahim al-Nashiri, was present for the first time in multiple hearings.

The commission began with the presiding judge, Col. Vance Spath, questioning acting chief defense counsel Col. Wayne Aaron on what progress the “defense community” had made in securing additional learned counsel for al-Nashiri. Aaron responded that, as a representative for the Military Commissions Defense Organization, he did not represent any parties and was unclear of his purpose at the commission. He also objected to the court’s order that he be present and questioned the court’s authority to order “members of an independent organization who have not entered an appearance in this case” or been properly called as a witness to appear. Regardless, Aaron confirmed that he was attempting to secure learned counsel for al-Nashiri.This was consistent with a filing that Lt. Alaric Piette, the remaining member of al-Nashiri’s defense team, had attempted to file but that the court rejected. When Spath asked whether the identified candidates had security clearances, Aaron responded that he was uncomfortable answering that question in a public forum. Spath expressed frustration to this response later in the proceedings. Aaron ended by reiterating his organization’s position that the commission does not have the authority to order its members to appear when they have not entered an appearance or been called as a witness.

Next, the commission called Yaroshefsky as a witness by remote video conference. She testified that she had provided ethics advice to Kammen upon his request. This was based on unclassified information that he had provided to her indicating his belief that there was a real and ongoing threat of government intrusions during attorney-client meetings, including the placement of listening devices in attorney-client meeting rooms. Further, Kammen indicated that, due to the classified nature of the intrusions, he could not inform al-Nashiri why they could no longer communicate.

Based on these facts, Yaroshefsky testified, she advised Kammen that he had an obligation to ensure confidentiality in his communications with his client, including by remedying the situation if he felt that government intrusion existed. She outlined specific legal action for Kammen to take, which she understood that he did by filing documents alleging the intrusions and motioning for hearings on the matter, which were denied. As these efforts failed and Kammen believed the intrusions to be ongoing, Yaroshefsky determined that Kammen had “no choice but to withdraw” as he could not communicate with his client without compromising attorney-client confidentiality. Specifically, she testified that “the ethics rules of every jurisdiction” require lawyers “to withdraw when their conduct would thereby violate the rules of professional conduct.”

Spath asked Yaroshefsky to respond to a hypothetical wherein an attorney believes that attorney-client communications have been compromised but a tribunal orders the attorney not to withdraw. Citing Model Rule 3.4(c) of the American Bar Association (ABA) Model Rules of Professional Conduct, Yaroshefsky testified that the lawyer would have the obligation to obey the order if he or she deemed it lawful and to promptly challenge the order through available legal processes if he or she did not. Spath inquired about Model Rule 1.16(c), which requires a lawyer to continue representation notwithstanding good cause for termination if ordered. Yaroshefsky testified that this rule had to be “interpreted in light of [Model Rule] 3.4(c)[,]” which means that the lawyer has an obligation to pursue legal process challenging such an order if they believe it to be unlawful, and does not simply need to comply. She understood Kammen to be pursuing that process, including through habeas proceedings. Spath then inquired as to whether the unclassified discussion of the possible intrusions taking place in the commission proceedings was sufficient for al-Nashiri to give his informed consent to any conflict. Yaroshefsky declined to opine on that issue as it would depend on the exact nature of the information available.

Spath then turned questioning over to the parties. Piette declined to ask Yaroshevsky any questions for the defense. Acting for the prosecution, Col. John Wells asked a variety of questions regarding attorney-client confidentiality in various hypothetical circumstances. This included whether an attorney should ever confer with a client in a public location, such as a holding cell, where another party may overhear the conversation. She responded that this may sometimes be necessary, but that attorneys should keep discussions of any confidential information to a minimum.

He also inquired whether, should an attorney notice anything that would constitute an intrusion into the attorney-client relationship--such as cameras and a one-way mirror in a prison interview room-- he should address the problem by seeking to change locations or have those features removed. Yaroshefsky reiterated that the answer would be fact-specific, stating, “I'm not really certain why it is you're asking me these questions. I'm testifying about ethics rules, not about jail procedures.” Finally, Wells presented Yaroshevsky with a motion filed by Kammen that appeared to have been outstanding at the time that she authored her ethics opinion and that appeared to ask for permission to meet with al-Nashiri in a different venue. He asked if knowing that this motion was still outstanding would have changed her opinion that Kammen had an ethical duty to withdraw. Yaroshefsky replied that she would have to examine the motion in more detail to reach an opinion.

Spath then posed some additional questions to Yaroshefsky. He first read Yaroshefsky an excerpt from the U.S. District Court for the District of New Jersey’s opinion in Rusinow v. Kamara stating “[e]ven if withdrawal is otherwise appropriate, other considerations must sometimes take precedence[,]” and asked her opinion as that relates to Model Rules 1.16(a) and 3.4(c). She indicated that she would have to review the case, but speculated that it likely related to a permissive, versus a mandatory, withdrawal. Spath also asked Yaroshefsky about certain articles she had written that were critical of the military commissions, but noted that these preceded the Military Commissions Act of 2009. He then asked if she had analyzed that legislation from an ethical standpoint, and she replied that she had not. He then thanked and dismissed Yaroshefsky.

Spath then went on to issue several findings of fact. He found that Emily Olson-Gault, who had testified previously, was a credible witness and had testified that relevant ABA guidelines were advisory and “not some kind of talismanic requirement[.]” He then ran through the timeline of events surrounding Kammen’s refusal to participate in the proceedings, and reiterated several of his objections to members of the defense team’s actions. He pointed out that Kammen’s requests to meet with al-Nashiri in a courtroom, rather than the space provided at the detention center, were granted and another room had also been offered. Spath claims in the end that the statute requiring learned counsel is ambiguous and therefore up to the interpretation of the court. He further noted that there is no order from any judge severing the relationship between Kammen and his client, and that the habeas order from the court in Indiana only related to efforts to compel Kammen’s participation. Based on these grounds, he found that learned counsel was still available to the greatest extent practicable, consistent with relevant statutory requirements.

Spath then directly asked al-Nashiri whether he released Kammen from representing him. Al-Nashiri replied “I believe he chose to leave this case, and I support him.” In response to a similar question about another attorney, al-Nashiri responded: “All the attorneys are free to have their own opinion, and I support them. In other words, I cannot force anyone to come here.” Spath then declined to sever the relationship between Kammen and al-Nashiri, though he indicated that he might reconsider once another learned counsel was brought onboard. He also issued an order formerly reconsidering a 2015 decision that allowed Commander Brian Mizer--another attorney with capital trial experience--to withdraw from al-Nashiri’s defense team and ordered Mizer to be brought back on orders to serve as learned counsel. In reference to this order, Spath said: “I don’t know what authority I have, but we’re going to test it.”

Spath then ended the hearing by asking the parties if they had any last issues. The prosecution indicated that it did not. For the defense, however, Piette made a closing statement responding to some of Spath’s findings of fact. He stressed that the actions of the defense team were not a strategy, but actions in which they had no choice if they wished to comply with relevant ethics and professional rules. Spath responded by reiterating his own position as well as his frustration with the defense team’s actions. He then closed the commission’s proceedings until they reopen in January.