The Latest Scandal of the Military Commissions at Guantánamo: A Death Penalty Case Without a Death Penalty Lawyer

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The military commissions at Guantánamo, since they were ill-advisedly dragged out of the history books by the Bush administration, have persistently failed to demonstrate anything more than a tangential relationship to justice, as I have been reporting for over ten years. Last September, I summarized the trial system’s many failures in an article entitled, Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions.

Under Donald Trump, there has been no improvement. Pre-trial hearings drag on, seemingly interminably, as defense lawyers seek to expose evidence of the torture of their clients in CIA “black sites,” while prosecutors, for the government, do everything they can to hide that evidence. Earlier this month, however, as I explained in a recent article, a new low point was reached when, astonishingly, the chief defense counsel, Brig. Gen. John Baker, was briefly imprisoned for defending the right of three civilian defense attorneys to resign after they found out that the government had been spying on them.

The loss of the attorneys led to a disgraceful situation in which the government insisted on limping on with the capital case — against Abd al-Rahim al-Nashiri, a victim of CIA torture, and the alleged mastermind of the bombing of the USS Cole in 2000 — even though it is illegal to pursue a capital case without a qualified death penalty lawyer on board. That role was filled by Rick Kammen, who had been on al-Nashiri’s case for nine years.

Below, to bring the story up to date, I’m cross-posting a very helpful article posted last week on the ACLU’s website by Cassandra Stubbs, the director of the ACLU Capital Punishment Project, who explains how, with these latest developments, the commissions “have devolved into an unacceptable and alarming assault on defense lawyers attempting to provide fair representation to their clients.” On the lack of a death penalty lawyer on al-Nashiri’s case, she writes, “Just as you would not expect a recent medical school graduate to perform a complex and risky surgery, you would not assign a junior lawyer without capital experience a leading role in a capital case.”

And on the imprisonment of Brig. Gen. Baker, she writes of the trial judge’s “unjustified and reprehensible attack on defense counsel.”

Her conclusion is stark: “The tribunals have become a costly farce, inflicting incalculable damage to due process and justice.” She adds, “This farce must end.”

Instead, since her article was published, a bad situation has become even worse, with the commissions’ Convening Authority Harvey Rishikof ruling that the trial judge, Air Force Col. Vance Spath, was correct “in law and in fact” to convict Brig. Gen. Baker. Rishikof ruled that Baker will not have to pay the $1,000 fine that Judge Spath ordered him to pay, and he also responded to the attorneys’ criticism by “recommend[ing] to the Joint Detention Group at Guantánamo Bay that a ‘clean’ facility be designated or constructed which would provide continued assurances and confidence that attorney-client meeting spaces are not subject to monitoring, as the commission proceeds.”

In the Daily Beast, Spencer Ackerman described this as “the closest Rishikof has come in his nearly nine-month tenure to acknowledging the danger the government’s seeming inability to allow tribunal defense attorneys to communicate amongst themselves poses to the entire commissions enterprise.”

Baker’s lawyers are currently planning their next move, with Ackerman reporting that, after the contempt ruling, “Lawyers for Baker immediately turned to the federal courts to free him. A reluctant Judge Royce Lamberth of the Washington, D.C. district court  punted to Rishikof, though Lamberth left himself the option of subsequent intervention. Baker’s lawyers may go back to Lamberth if the Pentagon will not overturn Rishikof,” according to one of the lawyers.

Barry Pollack, one of Baker’s attorneys, said, “While we are very pleased that the Convening Authority negated the remainder of the sentence of confinement and overturned the fine that had been imposed, we think the Convening Authority was plainly wrong in concluding that the military judge had the authority to hold General Baker in contempt in the first place. The contempt finding should be reversed. We are reviewing whether there is a further avenue within the military that should be pursued to challenge the erroneous contempt finding or whether to return to Judge Lamberth to ask him to overturn the contempt finding.”

At Guantánamo, a Death Penalty Case Without a Death Penalty Lawyer
By Cassandra Stubbs, Director, ACLU Capital Punishment Project, November 14, 2017

The Guantánamo military commissions, the scheme created by the government to try 9/11 and other detainees, have devolved into an unacceptable and alarming assault on defense lawyers attempting to provide fair representation to their clients.

A new letter, drafted by the ACLU and joined by 150 death penalty lawyers and law professors, registers the capital defense community’s outrage over the legal breakdown, which clearly violates federal and international law.

In the current crisis, Brig. Gen. John Baker, a decorated combat veteran and the second-highest ranking lawyer in the Marine Corps, was sentenced to 21 days of confinement by the presiding military judge in the prosecution of Abd Al-Rahim Hussein Al-Nashiri, a suspect in the 2000 bombing of the USS Cole. Gen. Baker, in his role as the chief defense counsel for the Guantánamo military commissions, had granted a request by Al-Nashiri’s defense counsel to withdraw from the capital case because of an ethical conflict that is secret but is known to involve government monitoring of attorney-client communications. Three of Al-Nashiri’s long-term lawyers then withdrew — including his one attorney qualified to work on death penalty cases. The lawyer left on the case was a junior military lawyer.

The presiding military judge, Col. Vance Spath, was displeased — both that the lawyers had withdrawn and that Gen. Baker granted their dismissal without his permission. How Judge Spath expressed that displeasure is where things went horribly wrong. He found Gen. Baker had acted in contempt of the court, and ordered him to be confined for 21 days. (Gen. Baker spent 48 hours confined to his trailer at “Camp Justice” on the Guantánamo naval base before being released after he filed a federal appeal, which is still pending.) Spath then ordered the young military lawyer with no death penalty experience to proceed with Al-Nashiri’s defense on his own.

Capital defense is a highly complex and specialized area of law. Both in traditional federal prosecutions and in the unique provisions for Guantánamo, there must be at a minimum two lawyers representing a person facing the death penalty, and at least one lawyer must be “learned counsel,” with distinguished prior experience and knowledge in the area of capital trials. Just as you would not expect a recent medical school graduate to perform a complex and risky surgery, you would not assign a junior lawyer without capital experience a leading role in a capital case.

Richard Kammen, Al-Nashiri’s former long-term capital defense counsel, had been on the case for nine years. He had been practicing law for 46 years and had served as lead capital counsel in numerous cases. In contrast, Al-Nashiri’s remaining defense counsel, Navy Lt. Alaric Piette, is a 2012 law school graduate who meets none of the requirements for “learned counsel.” He was added to the existing Al-Nashiri defense team just a few months ago. He has no prior capital experience, and no prior criminal defense experience with homicide charges. He rightly told the court exactly that.

Judge Spath ordered the young lawyer to represent Al-Nashiri on his own in the scheduled proceedings. The judge’s departure from the rules, which require learned counsel at every part of a capital prosecution, is inexplicable. Even beyond the binding military commission rules, the American Bar Association’s guidelines for capital cases have long explained that the unique and complex labyrinth of capital trial preparation and investigation requires qualified death penalty counsel represent the defendant at every stage of the proceedings. There is no exception to this rule because the expertise is deemed necessary throughout. Nonetheless, Judge Spath suggested that the junior defense counsel should, alone, stand in the place of learned counsel and a team with deep knowledge of the voluminous issues that the case raises. The young lawyer resisted, repeating several times, that he was “not qualified” to represent Mr. Al-Nashiri in the capital pretrial matter without learned counsel.

Judge Spath dismissed the lawyer’s refusal to speak as a trial “strategy,” as if requesting qualified counsel for his client was somehow a personal choice, designed to disrupt the case. The young lawyer pointed out that it was neither his nor his client’s choice: “This cannot be trial strategy. It was not our choice.” Judge Spath ordered him to continue anyway.

The judge’s unjustified and reprehensible attack on defense counsel, and his insistence that a major capital trial go forward without experienced counsel, is just the latest in a long string of outrages in the Guantánamo military tribunals. Listening devices in attorney-client meeting rooms have been installed, disguised as smoke detectors. The FBI has infiltrated and investigated defense teams. Privileged legal mail is seized. Sadly, the list goes on.

The tribunals have become a costly farce, inflicting incalculable damage to due process and justice. This farce must end.

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 the Donald Trump No! Please Close Guantánamo initiative, launched in January 2017), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — click on the following for 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).

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