Blog
Published on November 3, 2017
By Patricia Stottlemyer
I’m heading to Guantanamo to observe next week’s proceedings in the case of accused USS Cole bomber Abd al Rahim al Nashiri. While it’s not unusual for procedural and other issues to gum up the hearings, this week, the commissions have been in such disarray that it’s unclear whether there will be any proceedings for me to observe.
Chief Defense Counsel Brigadier General John Baker, the second-highest ranking lawyer in the Marine Corps, was sentenced to 21 days in confinement at Guantanamo for defending the rule of law. And it’s possible that Nashiri’s civilian defense counsel could face jail time for refusing to compromise their client’s right to a fair trial. The Guantanamo Military Commissions Convening Authority deferred Baker’s sentence Friday afternoon after a habeas petition was filed in federal court, but his conviction stands. The federal judge said Friday that he would give the Convening Authority a “reasonable” amount of time to review the conviction, before he would rule on the habeas petition. But there’s no telling what “reasonable” means.
Three weeks ago General Baker signed off on a request from Nashiri’s civilian defense team to resign from the case, determining that government misconduct would render their continued representation unethical. While the details of the alleged misconduct remain classified, the civilian lawyers believe the government has been eavesdropping on their conversations with Nashiri, destroying confidentiality and compromising their ability to defend their client.
On Thursday in a D.C. District Court hearing, attorney Michel Paradis said he had seen the underlying evidence of the misconduct, and called it “shocking.” Paradis told a federal judge that General Baker had no doubts about whether the civilian counsel must be excused. Independent legal expert Ellen Yaroshefsky agreed that the circumstances of this case defied ethics rules designed to ensure zealous and fair representation. The specter of eavesdropping is just one symptom of the dysfunction at Guantanamo.
The detention of General Baker is another. The judge in Nashiri’s case, Air Force Colonel Vance Spath, demanded that General Baker order the civilian defense counsel to appear. When Baker refused, Spath found him in contempt.
Few people know the intricacies of the Guantanamo military commissions as intimately as Baker. He pointed out last year that “the military commissions in their current state are a farce.” “Instead of being a beacon for the rule of law,” Baker explained, “the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.”
Nashiri has been in U.S. custody for 15 years, and his trial has yet to begin. The excusal of civilian defense counsel, including death penalty lawyer Rick Kammen, presents another hurdle. By law, the case cannot go forward without an attorney who specializes in death penalty cases (referred to as “learned counsel”).
But Friday morning, Spath continued the proceedings anyway, without the civilian defense lawyers, and despite repeated protests from military defense attorney Lieutenant Piette that he was not equipped to handle the death penalty case without learned counsel. While some have sought to blame defense counsel for what they characterize as “theatrics” or intentional delays, Piette insisted that the underlying issue was created by the government, and that attorneys who “care about their client, care about their job, and care about justice,” could not go forward under these circumstances.
Clearly, the system at Guantanamo isn’t working. That’s why President Trump’s suggestion that he would consider sending terrorism suspect Sayfullo Saipov to Guantanamo, rather than try him in federal court, was so alarming. Fortunately, President Trump correctly decided that federal court would be the more efficient and reliable option.
This Saturday at 0600, I’m scheduled to board a plane at Joint Base Andrews to travel to Guantanamo to observe the Nashiri proceedings. Whether the plane will take off, or if court will be in session next week, is anyone’s guess.
