The Complete Collapse of Abd Al-Rahim Al-Nashiri’s Military Commission Trial at Guantánamo

9.3.18

Col. Vance Spath and Abd al-Rahim al-Nashiri, both at the heart of a meltdown in the military commission trial system at Guantanamo.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

It’s three weeks since a judge in Guantánamo’s military commission trial system, Air Force Col. Vance Spath, indefinitely halted proceedings in one of the trials’ only active cases — that of Abd al-Rahim al-Nashiri, a Saudi accused of masterminding the bombing of the USS Cole in 2000, when 17 US sailors were killed.

Carol Rosenberg of the Miami Herald, who first reported the story, announced that Col. Spath “shut down the proceedings because of his inability to get defense lawyers back to the death-penalty case.” In October, three civilian lawyers quit the case for reasons that were not specified, but that observers presumed related to them discovering that they were being spied on by prosecutors — or, at least, by the military authorities at Guantánamo, on whose behalf the prosecutors are working.

I reported this story in November, when, adding insult to injury, Judge Spath briefly imprisoned Brig. Gen. John Baker, the Chief Defense Counsel of the military commissions, for refusing a request by him to reinstate the defense team — Rick Kammen, Rosa Eliades and Mary Spears — even though Brig. Gen. Baker was entirely justified in doing so. The loss of Kammen was a particular blow, as he is a death penalty expert, who has been on the case since al-Nashiri was first charged nearly ten years ago, and, by his own reckoning, has “devoted at least 10,000 hours working on the case, traveled to at least seven foreign countries in trial preparation and to Guantánamo 50 times to meet with Nashiri or appear in court,” as Carol Rosenberg explained in October.

In my article at the time of the lawyers’ resignation, I drew on an article in Slate by Philip Carter, a senior fellow at the Center for a New American Security and adjunct professor of law at Georgetown University, who briefly served as Deputy Assistant Secretary of Defense for Detainee Policy under President Obama. I wrote:

After Brig. Gen. Baker’s imprisonment, lawyers working for him sought a writ of habeas corpus, “perhaps the first time in history such a writ has been sought on behalf of an active duty general officer,” as Carter explained, adding that District Court Judge Royce Lamberth expressed concerns that Baker “had no obvious appeals route because he himself was not subject to the commissions’ jurisdiction.”

[On November 3], the commissions’ convening authority, Harvey Rishikof, decided to release Baker from his short-lived but significant imprisonment, although he “merely deferred Baker’s punishment without addressing any of the more basic tensions laid bare by Baker’s actions and Spath’s response,” as Carter put it, adding that al-Nashiri’s pre-trial hearing then continued, “but with just one relatively junior Navy lawyer, former Navy SEAL and 2012 Georgetown law school graduate Lt. Alaric Piette, representing the accused.”

Lt. Piette has no experience of death penalty trials, and in a follow-up article, ‘The Latest Scandal of the Military Commissions at Guantánamo: A Death Penalty Case Without a Death Penalty Lawyer,’ I cross-posted an article by Cassandra Stubbs, the director of the ACLU Capital Punishment Project, who explained how capital cases require the presence of a lawyer with experience of death penalty legislation, and linked to a letter, drafted by the ACLU and signed by 150 death penalty lawyers and law professors, which, as I put it, “register[ed] the capital defense community’s outrage over the legal breakdown, which clearly violates federal and international law.”

In another twist, defense secretary James Mattis then fired Harvey Rishikof, although for reasons that have not been explained, and which may not involve his perceived leniency towards Brig. Gen. Baker. It has been suggested, for example, that he was working towards a plea deal for the five men accused of involvement in the 9/11 attacks, the only other ongoing capital case, which is also caught up in seemingly endless pre-trial hearings that seem to go round in circles.

Back in November, my article drawing on Philip Carter’s assessment continued as follows:

As a result of this epic legal disaster, Philip Carter concluded, accurately, that the military commissions “have gone off the rails and broken down so completely that they cannot be repaired.” As he also stated, “They now labor under the weight of ethical dilemmas like this, years of delay, and confusion about basic rules that make any effort to move them forward impossible.”

He also explained, “All three branches have tried to fix the Guantánamo war courts, and yet, even in their current incarnation, these tribunals are failing. It is time to end the charade of justice at Guantánamo and terminate these trials. The defendants in the dock at Guantánamo should face prosecution by a properly constituted American court — or none at all, and thus be detained under the laws of armed conflict. There simply is no substitute for justice and the rule of law.”

Judge Spath on al-Nashiri’s trial: “I am abating these proceedings indefinitely”

It took until February 16 for Judge Spath himself to publicly agree with Philip Carter’s assessment, when, as Carol Rosenberg explained, “on the last day of a weeklong hearing in which Eliades and Spears ignored prosecution subpoenas to appear at court by video feed, Spath assembled defense and prosecution attorneys in the court and offered a 30-minute monologue.”

She added, “He listed his frustrations at having his orders ignored, uncertainty over his authority raised by the Marine general’s decision-making and inaction by Pentagon officials to help him. At one point he said he was considering retiring from the Air Force, then declared that he needed clear answers on how to proceed. ‘I am abating these proceedings indefinitely,’ he said twice, at one point adding: ‘We’re done until a superior court tells me to keep going.’”

Rosenberg then stated that Col. Spath “walked off the bench at 10:12 a.m., declaring: ‘We are in abatement. We are out. Thank you. We’re in recess.’” A complete transcript of Col. Spath’s statement is here, and for further information check out Amy Davidson Sorkin’s assessment in the New Yorker.

In one key passage highlighting Col. Spath’s frustrations, Davidson Sorkin noted that he said that, “in his twenty-six years of service, ‘I’ve never seen a judge advocate show up in Class B’s time after time.’ Class B’s are less-than-dress uniforms; Spath had, apparently, spotted officers assigned to the Military Commissions Defense Organization, which manages the cases for defendants like Nashiri and five accused 9/11 plotters, wearing them in his courtroom. Spath continued, ‘I’m not oblivious. I know what that says. What little respect you have for the commission is obvious. A short-sleeve shirt, no tie, no coat; I get it. That’s the message. That’s been the message from the defense for five months.’”

She also wrote:

On an emotional level, Spath blamed the defense for the resulting deadlock. “They don’t follow orders; they don’t follow direction; they don’t obey commission regulations, or rules, or subpoenas, as we saw,” he said. They had exhibited “lawlessness” and “contemptuous behavior”; they had “scoffed at my authority.” He had been, it seemed, dismayed when a Pentagon bureaucrat whom he’d had testify … by video link, had mentioned that there might be a time when commission lawyers would defy an unethical order. Spath thought that the bureaucrat was conflating the idea that military officers could decline to follow unlawful orders with the obligation of lawyers to listen to judges. That confusion, it’s worth noting, is built into the military commissions — the relation between military and civilian rules has never been clear. But Spath found it out of proportion, in a way that he seemed to take personally. “I hope cool minds reflect on what my orders have been,” he said. “I’m not ordering the Third Reich to engage in genocide. This isn’t My Lai.” All he was doing was telling the lawyers to listen to him and get back in court, he said. “Those are the extent of my orders. Not war crimes, people.”

She added, “When a judge starts berating the courtroom to remember that he is not a Nazi, cool minds are not reflecting, on any side. Spath seemed to recognize this. The night before, he said, he had not slept. ‘I went to the gym. I thought maybe the treadmill would either calm me down—which it has, of course. Give me more—more reflection. It did. And I went back and looked again, and looked again.’”

Davidson Sorkin also explained:

What he found is that, whatever his feelings about the defense, on a legal level the blame — and the solution — lay elsewhere. There were, he said, “questions that we need answered, frankly, from a court superior to me.” Spath thought that Baker’s reading of the Military Commissions Act could lead to absurd outcomes, because the defense could then bring the trial to a halt anytime it wanted to, by denying the accused representation. But, he said, maybe Baker was reading the law correctly; maybe Congress, in other words, had put together something that sloppy and absurd and ill-functioning. (It wouldn’t be the first time.) “We need somebody to tell us, is that really what that says, despite, obviously, every other court system in America thinking differently.” With that, Spath seems to have glimpsed what many critics of the military-commissions law have argued all along: the proceedings had revealed “significant flaws” in the military-commission process, Spath said. “We’re going to continue to spin our wheels and go nowhere until somebody who owns the process looks in and does something.”

Revealed: the “smoking gun” in the lawyers’ resignation

On Wednesday, in another breaking story for the Miami Herald, Carol Rosenberg reported on the specific reasons for the lawyers’ resignation last fall, which will only add to the woes of those somehow hoping to fix the commissions. Rosenberg stated that, in a 15-page prosecution filing obtained by the Miami Herald, it was revealed that al-Nashiri’s defense lawyers “quit the capital case after discovering a microphone in their special client meeting room and were denied the opportunity to either talk about or investigate it.”

The revelation came in what Rosenberg described as “a prosecution filing at the US Court of Military Commissions Review signed by the chief prosecutor for military commissions, Army Brig. Gen. Mark Martins, and three appellate lawyers on his staff,” as part of an effort on their part to get the review panel to order Judge Spath to resume the case. The prosecutors revealed that “the listening device that lawyers discovered in an early August inspection of their special meeting room was a legacy of past interrogations — and, across 50 days of ostensibly confidential attorney-client meetings, was never turned on.”

The filing specifically states that, after the three lawyers quit, prison workers “removed flooring, walls, and fixtures” in the meeting room used by the defense lawyers, and “confirmed that legacy microphones, which were not connected to any audio listening/recording device nor in an operable condition, were removed.”

However, Rick Kammen told the Miami Herald that the prosecution account was “outrageous” and “really grotesque selective declassification” designed to permit “some portion of the truth to seep out, but only in ways that the government feels will help it.”

He explained, as Rosenberg described it that, at the time of the resignations, “he was only allowed to say that something had occurred, which he could not describe,” and that, although “he sought discovery from the judge in order to investigate the episode as well as a hearing,” his requests were denied. As Rosenberg added, even Judge Spath’s denial is classified.

Kammen told the Herald, “Our concerns were much greater than what they appear to admit was there.” He added, however, that even the limited information disclosed by the prosecution “demonstrates that either Colonel Spath was lied to by the government or in many of his statements he was lying to the public, the press and the victims in a way that was absolutely shameful and disgraceful — by casting it as fake news.”

Rosenberg also explained that the prosecution’s filing is not part of its appeal, but merely a response to “a Feb. 28 bid by Nashiri’s lone defense attorney, Navy Lt. Alaric Piette, to block the appeal on jurisdictional grounds,” with the prosecution adopting Judge Spath’s assessment of Brig. Gen. Baker’s refusal to reinstate the three lawyers as a “strategy” to create a “triumphant stalemate” that “has proven destructive of the rule of law,” which succeeded in “so handcuffing and frustrating the military judge that he has indefinitely abated the proceedings below and is contemplating retirement from active military service because of his shaken faith in the law and what it means to be a lawyer.”

Despite the prosecution’s efforts at papering over the scandal, those scrutinizing the commissions are unimpressed, wondering, as Rosenberg put it, “why the discovery was considered a national security secret in the first place.”

Stephen Vladeck, a University of Texas law professor, asked, “If this really was an innocuous slip-up with unplugged microphones, why has the government apparently tried so hard to cover it up?” and, in a tweet, Hina Shamsi, the director of the American Civil Liberties Union’s National Security Project, asked, “what else is being kept secret?” Vladeck also pointed out that the disclosure “calls into serious question the legal ruling at the bottom of this dispute, in which Judge Spath concluded that there was no impermissible interference with the relationship between the defense attorneys and their client.”

Crucially, Rick Kammen also explained that “he was still bound by his understandings of what was classified at the time he resigned to not say what is missing in the prosecution account.” Speaking off the record, two defense attorneys told Rosenberg that “[o]ne thing people with war court security clearances were told at the time … was that they were forbidden to say the word ‘microphone.’” The lawyers added that “[o]ther words were declared taboo in discussing attorney-client meeting sites,” but they “declin[ed] to say the words because they may still be classified.”

As Rick Kammen put it, “It’s good to see the truth beginning to come out, but the reality is more than what they’ve declassified.”

Expect to hear more in future as this story refuses to go away — and as the military commissions continue, very evidently, to not be fit for purpose. Will someone with respect for the law finally put the commissions out of their misery, so the cases can be moved to federal court, where they belong?

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London.

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14 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, looking at the complete meltdown in the military commission trial at Guantanamo of Abd al-Rahim al-Nashiri, a “high-value detainee,” tortured in CIA “black sites,” who is accused of being the mastermind of the USS Cole bombing in 2000. Last fall, three of his civilian attorneys resigned after discovering that they were being spied on, and three weeks ago the judge, Col. Vance Spath, frustrated that he couldn’t get them to withdraw their resignations, indefinitely halted proceedings after something of a legal nervous breakdown.
    Bringing the story up to date, I add the latest information establishing that the meeting room was indeed bugged, and the rather incredible claim by prosecutors that the bugging was a legacy issue, and the mikes weren’t active. In conclusion, I call for the commissions to be scrapped, and for the existing trials to be moved to federal court, where they should have been all along, and probably would have been had it not been for the Bush administration’s colossal enthusiasm for the use of torture.

  2. Andy Worthington says...

    Do also check out this great round-up of the military commissions’ collapse for the Intercept by Shilpa Jindia, who I was pleased to meet in January at – and after – the protest outside the White House calling for Guantanamo’s closure on the 16th anniversary of its opening: https://theintercept.com/2018/03/05/guantanamo-trials-abd-al-rahim-al-nashiri/

  3. Andy Worthington says...

    Radmila Nastic wrote:

    Horror

  4. Andy Worthington says...

    Such a mess, Radmila. Hopefully it’s one step closer to the commissions being abandoned – but then again Trump shows no sign of wanting reality to upset his deeply-held prejudices.

  5. Andy Worthington says...

    Radmila Mastic wrote:

    They do not want to admit how wrong they were.

  6. Andy Worthington says...

    Yes, I think that’s right, Radmila, and they also don’t want to admit how unworkable the whole trial process has been from the very beginning – and when it was revived in 2006, and again in 2009. It’s such a shame that Obama didn’t simply scrap the commissions when he had the chance.

  7. Andy Worthington says...

    Lorraine Barlett wrote:

    Man, you said it. Put a silver stake in the heart of this beast. The commissions are an evil farce barely masquerading as a system of justice… that’s why I retired myself. It would have been easy to coast along and pretend to be working for my client, but I just couldn’t uphold the sham anymore. Tragic.

  8. Andy Worthington says...

    I don’t see any way out for the government, Lorraine. On one level, I suspect some in the establishment are content for trials to never happen, and for the “high-value detainees” to simply be held forever without being tried, but for that to work the sham proceedings also have to continue forever, like Groundhog Day, and that option’s clearly running out of credibility and energy. Judge Spath seems to have had something of a public nervous breakdown three weeks ago.

  9. Andy Worthington says...

    Lorraine Barlett wrote:

    I feel for him in a way. Guess he finally realizes that he is part of this corrupt legacy. He does need to retire, they all do – en masse, as a protest. But I gah-rone-tee the CIA/ NSA types will drag it out till the Rapture if they can.

  10. Andy Worthington says...

    I wonder how Judge Pohl is feeling, Lorraine. It must be hard for a decent person with respect for the law to believe the commissions are an actual functioning legal system. But yes, I take your point that there are undoubtedly some people in the US establishment with power and authority who will want to keep the system going forever.

  11. arcticredriver says...

    Andy, thanks for bringing this important story to our attention.

    I agree that Carol Rosenberg is one of the heroes here. A couple of weeks ago I read an account of someone’s first visit to Guantanamo. They said that JTF-GTMO had tightened the rules that applied to visitors. At the end of the article they described one of the group’s guides admonishing Rosenberg for a photo she had just taken, and informed her she had just earned herself a lifetime ban from the base.

    The book The Least Worst Place describes the great respect the first Commandant showed Rosenberg. Rosenberg used the unit flags of the wide variety of Army, Navy, USCG units, to keep track of which units had arrived, and which had left. The Commandant had noticed how she asked about the flags she didn’t recognize. I think it was at his last press conference, he requested patience, when she asked about a particularly unusual flag, she didn’t recognize. He made his retiring remarks, answered other questions, and then described how that flag was one he had his staff specially make, with symbology that related to Rosenberg herself – a special flag to honor her dogged curiousity.

    She was banned before, a ban that applied to her and Michelle Shephard, with a justification that seemed pretty petty, and was later rescinded.

  12. arcticredriver says...

    One of the most surprising and frustrating aspects of the Guantanamo Military Commissions is the idea that the suspects could first both have all their legal rights sidelined, and then be tried. Back when the first version of the Military Commissions was new some commentators asserted that Bush had had two choices (1) put “National Security” first, and torture the captives, on the off-chance they knew of a plot the US wasn’t guarding against; or (2) charge the men, and try them.

    I remember commentators asserting the USA couldn’t do both.

    And yet that is precisely what Bush administration proceeded to do.

    At some point they claimed that by bringing in a brand new “clean team” of interrogators, who had not been involved in their torture, they could get new confessions, untainted by their earlier torture.

    As a fair reading of the 66 interviews the McClatchy team performed, and the other interviews with former captives showed, many captives, who experienced way less torture than KSM and the other guys who were in CIA custody, will remain deeply traumatized, for the rest of their lives.

    A couple of Happy Meals from the base McDonald’s won’t heal their trauma.

    Yes, the loved ones of the 9-11 victims want biblical vengeance; well most of them seem to want this. Lots of other Americans seem to want this biblical vengeance as well. But should this drive policy?

  13. Andy Worthington says...

    Thanks for your comments, arcticredriver.
    That’s a great article by David Welna of NPR, isn’t it, revealing, to those who don’t know, how opaque and bureaucratic and absurdly jingoistic the entire operation is.
    I thought this was telling:

    During both the George W. Bush and Barack Obama administrations, JTF commanders routinely declared their commitment to the ‘safe, humane, legal and transparent care and custody of enemy combatants’ (italics added).

    But Leonis omits “legal and transparent” as she begins our tour.

    “The primary mission of Joint Task Force Guantánamo is the safe, humane care and custody of law-of-armed-conflict detainees,” Leanos announces.

    It’s also a bit of shock how Carol Rosenberg was treated, after 16 years of visiting and reporting. I know it’s happened before, but I can’t help thinking that it also seems to be a sign of an unnerving clampdown at the prison, fulfilling Trump’s idiotic vision of the place as some sort of frontline in the “war on Muslims” that he undoubtedly and entirely inappropriately believes in.

    Thanks also for that reminder of Carol Rosenberg being honored in Guantanamo’s early days. It’s very sad to think how, 16 years on, that kind of independence of thought amongst senior officials involved in the running of Guantanamo has, presumably, been stamped out, even though, of course, any justification for the prison’s continued existence remains completely non-existent.

  14. Andy Worthington says...

    Thanks for your important observations, arcticredriver.
    If you get the chance, some links to those moments from the commissions’ early days – about commentators noting the impossibility of reconciling torture with legal due process – would be very helpful.
    I also remember when the “clean teams” were first mentioned, possibly in 2008, if I recall correctly, and how alarming that was to astute commentators, who were rightly concerned that tortured and traumatized prisoners might well be so broken that they would repeat lies suggested to them, which they had initially made under torture, because of a very real fear that the “clean teams” were a front, and that they’d end up being tortured again. What a disgrace.
    You are also right to mention “biblical vengeance,” as that seems an accurate description of the US’s post-9/11 policy – and of course it isn’t at all a sound basis for policy. And despite Obama’s evident enthusiasm for continuing ill-advised warmongering during his eight years in office – via drone assassinations and numerous covert and semi-covert wars, in particular – I never got the idea that he was driven by this “biblical vengeance.” I don’t feel it with Trump either, who is, I think, fundamentally too selfish to identify with a collective notion of vengeance, but in his case, I fear, his fundamental racism drives a dangerous antipathy towards the Guantanamo prisoners, and an inability to understand why the place remains so damaging to America’s psyche and its international standing.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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