Why Aren’t the Military Commissions Working? Look No Further Than Al-Nashiri

It’s hard to keep up with the numerous difficulties that the U.S. government has encountered in its effort to prosecute Abd al-Rahim al-Nashiri—alleged, among other things, to be responsible for the October 2000 bombing of the USS Cole—in a Guantanamo military commission. But the latest dispute in the case—over whether two of al-Nashiri’s (former) civilian lawyers should be allowed to intervene in an interlocutory government appeal to the Court of Military Commission Review (CMCR)—is a perfect microcosm for everything that is wrong with the commissions.

To make a (very long) story shorter, the case is currently “abated” because of an intractable conflict over allegations of government surveillance of (and interference with) al-Nashiri’s relationship with his lawyers. When the presiding military judge, Air Force Col. Vance Spath, ruled against al-Nashiri’s lawyers’ request to allow them to investigate (and inform their client) after they discovered a microphone in their client meeting room, the lawyers sought—and received—permission from Marine Corps Gen. John Baker, the commissions’ chief defense counsel, to withdraw. That, in turn, provoked a fight between Judge Spath and Gen. Baker over who had the authority to dismiss defense counsel (culminating in Spath holding Baker in contempt), but no actual resolution of either the merits of the underlying ethical dispute or of al-Nashiri’s lack of a “learned counsel” (by dint of the lawyers’ resignation). Effectively unable to proceed in a capital case without a “learned counsel,” Spath threw his hands up and abated the proceedings until “a superior court tells me to keep going,” at which point the government took an interlocutory appeal to the CMCR.

That’s where this latest saga begins. Two of al-Nashiri’s three (former) civilian lawyers, Rosa Eliades and Mary Spears, moved to intervene in the government’s CMCR appeal, arguing that, insofar as the propriety of their dismissal and their ethical obligations to their client were central to what the CMCR would have to decide (to say nothing of their liberty if Judge Spath also sought to hold them in contempt), they were entitled to represent their own interests. For reasons unknown, the government opposed the request (its filing is still undergoing a “security review”), and the CMCR summarily denied the motion, albeit while going out of its way to snark at the lawyers for prematurely referring to themselves as al-Nashiri’s “former” counsel.

Eliades and Spears then turned to the D.C. Circuit for relief, filing a petition for review of the CMCR’s denial of their motion to intervene (and seeking a stay of the CMCR proceedings pending disposition of their appeal). On Friday, May 11, a three-judge D.C. Circuit panel (consisting of Judges Millett, Pillard, and Wilkins) granted an administrative stay for purposes of resolving both the intervention question and their jurisdiction to do so. But perhaps most importantly, the appellate court also ordered the government to provide, by noon Eastern time on Monday:

a declaration describing any and all intrusions that have occurred, may have occurred, or that the government believes foreseeably could occur into the confidentiality of (i) petitioners’ communications with their client, (ii) petitioners’ communications with other lawyers, legal personnel, support personnel, or third parties as part of their representation of their client, or (iii) petitioners’ legal work product, legal files, or legal records (electronic or otherwise).

The court also ordered the government to submit copies of everything that the government had provided in conjunction with the matter to Gen. Baker and Judge Spath. In other words, a dispute over the narrow and technical question of whether Eliades and Spears should have been allowed to intervene in the government’s interlocutory appeal morphed, through the D.C. Circuit’s order, into a much bigger dispute—one putting the complete factual background to the underlying ethical dispute front and center.

At this point—and, it bears emphasizing, only at this point—the government did a 180 and reversed its position on intervention. To that end, last Monday, it notified the CMCR that it no longer opposed Eliades and Spears’s intervention—because “the Appellant seeks speedy resolution of this interlocutory appeal.” (The government’s filing offered no explanation for why it had previously opposed their intervention—a telling omission given that such opposition had certainly done no favors for “speedy resolution of this interlocutory appeal.”)

Given that nothing material to the merits of Eliades and Spears’s motion to intervene had actually changed since the CMCR had denied it, and that the government offered nothing beyond its desire for “speedy resolution” and “the interests of justice” as grounds for changing its position, one might have thought that the CMCR would have stuck to its guns—and adhered to its earlier ruling. But that’s not how the CMCR rolls. Instead, last Friday, the court reversed itself, noting that “Ms. Eliades and Ms. Spears have established good cause to permissively intervene in this interlocutory appeal. Thus, we will grant permissive intervention.” Like the government’s filing, the CMCR’s order offered no explanation for why good cause exists to allow such intervention now, but somehow didn’t exist at the time of the initial denial.

Shortly after that order, the D.C. Circuit chimed back in, delaying the briefing that was supposed to have been due today (and that, per the above, was clearly responsible for the government’s shift), and ordering the parties to first brief whether the CMCR’s government-inspired eleventh-hour reversal moots Eliades and Spears’s D.C. Circuit appeal. Those briefs are due later today.

Whatever happens going forward, though, there are four larger observations to take away from the government’s and CMCR’s conduct during this latest intervention dispute, each of which are, in my view, microcosms of broader problems with the commissions.

First, and most importantly, is the extent to which secrecy continues to be both a cause of and a major complication for every dispute, no matter how small. Not only are the facts behind the underlying interference claim still classified, but so is Judge Spath’s ruling apparently finding no “good cause” to justify the lawyers’ resignations, which is the legal analysis at the heart of this latest controversy. (Lots of other relevant material is also not public, which is not exactly helping things.) And just to drive the point home, it was only once a (very unsympathetic) D.C. Circuit panel ordered the government to file with an Article III court, and not just the military commission, a full accounting of all that had transpired that the government changed its tune (in order to absolve itself of having to comply with that filing). Here’s just one example of how secrecy dramatically complicates matters, slows them down, and leaves at least the appearance that there’s something to hide.

Second, the government’s litigation behavior on this particular issue should be called what it is: disingenuous. I’m hard pressed to think of a good reason why it should have opposed Eliades and Spears’s intervention in the CMCR in the first place (especially since, if the government prevails in its appeal, that will have the most significant consequences for Eliades and Spears). Granted, I haven’t seen the brief. Suffice it to say, though, that if the government’s goal truly was “speedy resolution of this interlocutory appeal,” opposing intervention had the opposite effect. But even if the government’s brief offers plausible arguments against intervention, I just don’t see how the D.C. Circuit’s briefing order would have affected any of that analysis (and the government itself, in its filing reversing its position, makes no such claim). Instead, what is crystal clear at least in this instance is that the government fought against intervention only until it stood to lose something more important than that particular fight. So be it. But to turn around and suggest to the CMCR that the reason for the change in position was, ironically, to expedite matters should’ve been seen for what it clearly was.

Third, the CMCR once again ceases to amaze. I’ve written before about the “misbegotten” CMCR—a court that has spent its entire history slowing down the military commissions and embracing pro-government arguments that couldn’t even get a single vote from the D.C. Circuit under “plain error” review. Indeed, even in mandamus cases (in which the bar for relief is exceptionally high), the D.C. Circuit has slapped down one CMCR judge for failing to recuse himself, and in two other cases, dropped strong hints that the CMCR got matters wrong even while holding that the plaintiff couldn’t meet the exceptionally high bar for mandamus relief. Suffice it to say, I’m not a fan. Here, though, was a golden opportunity for that beleaguered court to assert a modicum of independence—to call the government out for its transparent reversal and to deny it the fruits (and, in the process, force it to comply with the D.C. Circuit’s disclosure order). Instead, the CMCR just rolled over, granting the government the relief it sought without even bothering to explain why it changed its mind. That’s not going to do anything to help its credibility going forward.

Fourth, and finally, when you add these pieces together, you get … a whole lot of delay. Things came to a head before the trial judge in October of last year, and yet here we are in May, and we’re just now figuring out which parties are even allowed to participate in the first layer of review of the government’s interlocutory appeal (to say nothing of how long it will take the CMCR to rule on the merits of the appeal, or whether we go back to the D.C. Circuit from there). And this is with regard to an ethical issue that has nothing to do with the actual case against al-Nashiri. Some of the delay is because the commissions aren’t standing courts, and so only have sessions periodically. But a lot of the delay stems from the uncertainty that arises on issue after issue, and the complications that pervasive (and excessive) secrecy layers on top of the substance of—and the efforts to resolve—such uncertainty.

Multiply that by hundreds of issues, and three cases (including the far-more-complicated case against the 9/11 defendants), and that, in a nutshell, is a perfect microcosm of the (sorry) state of the Guantanamo military commissions today.