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.