This Week at the Military Commissions, 10/31 Session: Sturm and Drang in the Al-Nashiri Defense

On Tuesday morning, military judge Col. Vance Spath called to order the military commission in the case of United States v. Al-Nashiri. The 10/31 session primarily addressed the absence of three civilian defense attorneys, including capital learned counsel, for al-Nashiri. Michel Paradis previously discussed the circumstances and implications of their departure on Lawfare.

To kick off the session, the parties introduced themselves for the record. Al-Nashiri and his assigned judge advocate general, Navy Lt. Alaric Piette, were present for the defense. Marine Corps Brig. Gen. John Baker, chief defense counsel of the military commissions, and Phil Sundel, acting general counsel for the Military Commissions Defense Organization, joined them in the courtroom. Neither Baker nor Sundel appeared on behalf of al-Nashiri. Spath explained to al-Nashiri that while al-Nashiri usually can choose whether to attend commission sessions or waive the right to be present, his attendance was compelled in this instance to ensure he understood the circumstances surrounding the absence of capital learned counsel, Richard Kammen, and the two other civilian members of the defense team, Mary Spears and Rosa Eliades.

Spath then recounted a conference held on Sunday, Oct. 29, when Piette alone for the defense attended. In the conference, the military judge ordered the parties to file pleadings with the commission no later than noon on Monday, during which they presented their position on the way forward in light of Kammen’s continuing absence. Following the conference, the judge advocate general emailed the court indicating his view that the commission could not move forward without capital learned counsel. The court replied and directed him to submit a properly-formatted and marked filing. Piette responded again via email that he would not make any new written pleadings or other filings without learned counsel present. Also on Sunday, the court notified the parties that the Oct. 31 hearing would begin at 10:00 am and that the military judge wanted chief defense counsel, Baker, available to provide testimony.

Turning to the matter at hand, Spath laid out for the record the series of events that led to the current situation.

On May 11, 2017, the government filed a classified pleading providing notice to the commission and defense of a potential intrusion into attorney-client communications between an attorney who is not part of al-Nashiri’s team and a detainee other than al-Nashiri. On June 14, Baker sent the chief prosecutor a memorandum informing him that Baker had advised all defense counsel under his supervision that they were not to conduct attorney-client meetings at Guantánamo Bay until they determine that improper monitoring is not occurring.

On June 23, the defense filed a classified motion seeking to disclose to al-Nashiri classified information related to the alleged intrusions into attorney-client communications which Spath denied July 7.

On July 14, the defense filed a motion to compel production of discovery materials related to potential intrusions, as well as a motion for an evidentiary hearing or abatement of proceedings because of potential intrusions into attorney-client communications. Spath denied both motions Sep. 20 after concluding that the defense failed to carry its burden of proof to warrant additional disclosure, and that there was no basis to find that there had been intrusions into the communications between al-Nashiri and his defense team. On Aug. 14, the defense filed a motion to allow the accused to meet with his counsel elsewhere besides their usual location. Spath denied the request Oct. 25 because it was properly directed to the confinement facility rather than the court. On Oct. 4, a docketing order set forth the issues to be addressed during the current session, including the deposition of detainee Ahmed Muhammed Haza al-Darbi and testimony of various witnesses.

On Oct. 6, the three civilian defense attorneys submitted a request to Baker to withdraw from representation of al-Nashiri. They significantly relied on the June 14 memorandum and an ethics opinion obtained from Ellen Yaroshefsky, a legal ethics professor at Hofstra Law. Baker accepted the request, released them for good cause shown on Oct. 11 and provided notice to the commission Oct. 13. On Oct. 16, Piette filed a motion to abate proceedings pending the detailing of new learned counsel. The same day, the commission issued a directive reiterating that the civilian attorneys remain counsel of record in the case; ordering them to appear at scheduled hearings of the commission unless excused by Spath or the commission; inviting Baker to file pleadings as to his perceived authority to unilaterally excuse civilian counsel; and setting a compressed briefing schedule.

Between Oct. 20-26, the government and chief defense counsel filed pleadings responsive to the directive, and on Oct. 27, the commission denied the abatement motion and issued the following findings: (1) no good cause exists to warrant excusal of civilian defense counsel; (2) no evidence has yet been presented to demonstrate intrusions in this case which would ethically require withdrawal or disqualification of outside appointed learned counsel; and (3) excusal of outside appointed learned counsel at this stage would prejudice al-Nashiri’s due process rights. On Oct. 28, Baker acknowledged receiving the directive and a request from the chief prosecutor to notify the government and commission of his steps to ensure civilian attorney compliance. The following morning, Baker notified the government and the commission that civilian counsel was not returning to Guantánamo for the proceedings, as the military judge had directed.

Returning to Tuesday’s session, Spath advised defense counsel to review Washington v. Strickland, in which the Supreme Court held that the Sixth Amendment right to counsel guarantees “reasonably effective assistance,” judged objectively and considering all the circumstances. He indicated that the presence of capital learned counsel was only required to the extent practicable, and stated that he intends to move forward with the trial even in the absence of Kammen or a replacement. If the defense team disagreed, they could file a writ to the appeals court.

Next, Spath asked for Baker to be sworn in so he could answer questions related to his decision to relieve the civilian defense attorneys. But Sundel, acting general counsel for the Military Commissions Defense Organization, intervened to say that Baker was invoking privilege pursuant to Rule 501(b)(1) and refusing to testify. Spath rejected the assertion of blanket privilege and directed that the chief defense counsel invoke specific privileges in response to each of Spath’s questions. Baker had chosen to involve himself in the case, Spath said, by excusing counsel and notifying the commission of that decision. Therefore, Baker could not invoke the right to not be a witness. Sundel objected, saying that the chief defense counsel properly claimed privilege and would refuse to testify until Spath’s order was reviewed by the appellate court. He cited as authority the Model Rules of Professional Responsibility, which says that an attorney is obligated to pursue vehicles to challenge an order to pierce privilege until the highest court has decided the issue or refused to accept the issue. Spath reiterated that he was not trying to pierce privilege and that there was no basis for Baker to refuse to testify about non-privileged matters, which were the subject of Spath’s questions. The court then adjourned for a five-minute recess.

Following the break, Spath told Sundel that he did not have standing before the court, as he was not a party of record and had not filed a request to appear. The military judge directed him to sit down. Spath then called Baker, who stressed his concern about getting into privileged material and asserted his right to refuse to testify, in accordance with deliberative process privilege, the government information privilege under Rule 506, the attorney-client privilege under Rule 502, the attorney work product privilege and the obligations under state ethics rules to protect confidential information. Spath again objected to the idea of a blanket assertion of privilege. After more discussion about Baker’s prior interactions with the commission, the military judge explicitly stated for the record that he was ordering Baker to testify. He also ordered Baker to rescind the action excusing al-Nashiri’s civilian counsel and notify them that Baker did not have the power to accept their withdrawal. Baker said he refused to take either action, and Spath suggested the matter could be dealt with further at a contempt hearing on Wednesday and in the appellate court. Finally, Spath instructed Baker to notify the civilian attorneys that they needed to return immediately and to make arrangements for them to do so. Spath told Baker to let the court know by 4:00 pm that afternoon whether the chief defense counsel intended to comply.

Spath next addressed Piette and directed him to make a proper filing by 4:00 pm laying out his view of the road ahead. The judge advocate general reiterated the defense’s position that al-Nashiri has a statutory right to capital learned counsel for all proceedings, and that the case could therefore not move forward without Kammen or a replacement. Spath disagreed with that statute’s interpretation, saying that in his view learned counsel is only required to the extent practicable—the right is not absolute. Piette was capable of effectively representing al-Nashiri alone if necessary. The court would continue with business as scheduled, despite the absence of the civilian attorneys. If he was wrong, Spath said, al-Nashiri would benefit because Spath ordered the commission to move forward without learned counsel. If Piette refused to participate, however, that would also be addressed at Wednesday’s contempt hearing. Piette informed Spath that for the reasons previously stated in his Oct. 29 email, he would not comply with Spath’s order to file a written pleading.

Spath then directed Sundel, Baker, and Piette to return at noon on Wednesday for the contempt hearing, and put the commission in recess.