When is a defense lawyer not a defense lawyer?

A disturbing drama has been playing out, largely behind the scenes, in connection with the prisoners still held at Guantanamo Bay, Cuba. I will not take the time to set out the whole history of the placement of U.S. prisoners at the U.S. military base in Cuba. A brief summary can be found here. History

The short version of this story is that the lawyers for a man whom the United States Government seeks to execute have resigned because they discovered that the prosecution has been eavesdropping on interactions between defense counsel and their client, and has been seizing confidential documents. So, when is a defense lawyer not a defense lawyer? When he or she represents a client before a military commission.

Since 2002, the United States has been holding prisoners from the middle east conflict at the U.S. Naval Station in Guantanomo Bay. The peak population was 684 in June of 2003. Today, there are 41 detainees there. Seven of them have been charged with offenses in the military commission system. One of them is Adb al-Rahim al-Nashiri, who has been charged in the 2000 bombing of the USS Cole. The bombing killed 17 US sailors and injured 39 others.

The government is seeking the death penalty against Mr. al-Nashiri. In October, General John Baker, the supervising attorney for Mr. al-Nashiri’s counsel, agreed to a request from his civilian defense team to resign from the case. The lawyers who resigned included Indiana lawyer Rick Kammen, who had been under contract with the Marine Corps as “learned counsel.” That term refers to a lawyer experienced in federal death penalty proceedings. The other lawyers who resigned are civilian employees of the Justice Department. The law requires “learned counsel” in any federal death penalty case. (18 U.S.C. §3005.) But Mr. al-Nashiri is not being prosecuted in a federal court. Instead, he is being tried before a military commission. This tribunal was authorized by Congress after the prisoners were placed at Guantanamo Bay. The military commission process is much less rigorous than a federal trial. It includes more relaxed restrictions on hearsay evidence, and less availability to the defense of evidence to be used by the government.

The issue which prompted the resignation of Mr. Kammen and the two civilian defense department lawyers was their discovery that the government had been eavesdropping on their conversations with Mr. al-Nashiri. This was not the first time this problem had emerged in the military commission process. In March of 2017, during pretrial hearings for defendants alleged to have planned the September 11, 2001 attacks, lawyers for those defendants asked for information about the surveillance of defense work by government intelligence agencies. They described surveillance devices in rooms where attorneys met with their clients, the placement of an FBI informant within one defense team, and the discovery that an individual unrelated to the defense had access to documents supposedly served on secure servers.

After the al-Nashiri lawyers resigned, the presiding military commission judge ordered Gen. Baker to rescind the resignations and require the civilian attorneys to appear before the commission. Gen. Baker refused to do so, and the judge found him in contempt and sentenced him to 21 days’ confinement. The sentence has since been suspended, but the conviction remains. The civilian lawyers have not reappeared. The only military lawyer (Lt. Alaric Piette) in the case has appeared, but he is not qualified to act as learned counsel and has resisted participating in hearings.

In January, the hearings reconvened. The judge directed Lt. Piette to engage in “self-help” to prepare for trial. He also instructed the prosecutors to continue their efforts to obtain the presence of the two civilian DOJ lawyers. The defense argued that the learned counsel requirement applies to the military commission process. But the judge ruled that learned counsel was not required if it was not “practicable” to obtain one. Prelimary witnesses were presented, but Lt. Piette declined to cross-examine them. More information about this most recent session can be found here: Lawfare

The United States system of justice is threatened in two ways by this scenario. First, the right of defense counsel to confidentiality is central to the adversary system. The government, of course, contends that Mr. al-Nashiri is so dangerous that even his communications with his defense lawyers could harm national security. But if he is to have a fair trial, his right to confidential communications with his lawyers must be preserved. The issue of recordings of confined defendants’ communications with their counsel has been discussed here previously, and continues to be a live issue in the mainland U.S. as well as in Cuba. In fact, the U.S. Tenth Circuit is now considering a government motion to quash subpoenas of the Kansas U.S. Attorneys’ employees in a case involving prosecution monitoring of jail conversations. KCUR

Second, the right of counsel to insist on their client’s interest is also inviolable. Counsel cannot be forced to violate their ethical responsibilities to their client. Gen. Baker and Lt. Piette are to be commended for their devotion to their client and to the rule of law. We can only hope that their actions will expose the second-class military commission system for the travesty of justice that it is.

Integrity

As I have said before, it’s easy for lawyers to cheat. And very tempting. This is a consequence of the great power lawyers have. And it is an issue we must address, both for the sake of the justice system and for the welfare of our souls. Recent events provide another instance of how cheating by prosecutors distorts the justice system.

On December 20, 2017, the United States District Judge for the district of Nevada declared a mistrial in the then-pending case against Cliven Bundy and three others. The charges the men faced were conspiracy and assault, arising out of an armed confrontation with federal agents over control of public lands, which Mr. Bundy and his cohorts reject. The government indicated it wanted to retry Mr. Bundy and his co-defendants. But on January 8, 2018, the district judge granted the defense motion to dismiss the case with prejudice, meaning that it cannot be retried. Mr. Bundy, who had been in custody, was released.

"The court finds that the universal sense of justice has been violated," Judge Gloria Navarro said. The violation was the failure of the government to fulfill its obligation to provide information in its possession that was relevant to the defense. The government admitted it had omitted information; the prosecutor said that he “culled the database with witness protection in mind” because he thought leaks of information might lead to threats against witnesses. The trial judge called this a “reckless disregard for Constitutional obligations.”

The misconduct came to light when Larry Wooten, an investigator for the U.S. Bureau of Land Management who had been assigned to investigate the events surrounding the confrontation between the Bundys and the federal agents. Mr. Wooten says that he was removed from the investigation after he complained to the U.S. Attorney about government misconduct. You can read his memo here. Wooten memo.If you don’t want to go through the whole 18 pages, a good summary is here. Oregon Live Among other things, he says, “As the investigation went on, it became clear to me that my supervisor wasn’t keeping the U.S. Attorney’s Office up to date on substantive and exculpatory case findings and unacceptable bias indications.” Of course, one of the responsibilities of a prosecutor is to disclose to the defense any exculpatory evidence in his or her possession. And the prosecutor is held accountable for any such information in the possession of anyone on the prosecution team, whether the prosecutor is aware of the information or not.

To their credit, the prosecutors disclosed Mr. Wooten’s memo to the defense. The motion to dismiss followed. The government has 60 days from the date of dismissal to appeal; it has taken no action as of the posting of this article.

But the damage to the justice system has been done. Here’s the way the National Review sees it:

In April 2014, America was transfixed by an armed standoff in the Nevada desert. On one side was a collection of dangerous, out-of-control armed men who were deliberately provocative, prone to saying unhinged things in a single-minded quest to destroy their enemies, and who lied time and again to cover their misdeeds. On the other side was Cliven Bundy.

National Reviewl

Mr. Wooten points out that he is no fan of the Bundys. Nor is the National Review: “He broke the law. He defied the government without any legal justification, and his own conduct helped precipitate a crisis that could have led to a horrible tragedy. Bundy was wrong.”

Why does this happen? As a former prosecutor, I can attest that prosecutors do not all have horns and pitchforks; they are not, simply, evil. Two causes come to mind. The first is ego. The prosecutor wants to win his or her case, and if skirting the rules can safely be done to make it easier, then the prosecutor will do it. In a case I read recently that was reversed for a Missouri discovery violation, the prosecutor explained his failure to disclose jailhouse statements by the defendant until just before trial by saying, “If we disclose [the jailhouse recordings] to the defense, they’ll tell their client. And I’m not impugning anyone’s integrity, I’d do the same thing: Hey, they’re listening to your conversations, shut up. So we don’t disclose them until towards the end.”[1]

The second reason arises from the desire to fulfill the prosecutor’s obligation to enforce the law, to protect the public from the likes of the Bundys. The prosecutor in the Bundy said that he wanted to protect witnesses, and therefore limited his disclosures. Protection of witnesses is certainly a legitimate concern, but it cannot be used to justify flaunting rules intended to insure that the defendant receives a fair trial. The government is held to a higher standard. When the justice system itself cheats, it loses its status as a protector of justice.

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[1] State v. Johnson, 513 S.W.3d 360, 365 (Mo. App. 2016).