Armed Conflict

Abatement in Al-Nashiri is Reversed

Sarah Grant
Monday, October 15, 2018, 7:55 PM

On Friday, the Court of Military Commission Review (CMCR) reversed the abatement in United States v. Al-Nashiri, and ordered that proceedings resume.

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On Friday, the Court of Military Commission Review (CMCR) reversed the abatement in United States v. Al-Nashiri, and ordered that proceedings resume. The case has been in abeyance since February, when former military judge Colonel Vance Spath halted proceedings after civilian members of al-Nashiri’s defense team refused to comply with his order that they continue to represent al-Nashiri despite certain ethical objections and the commission was unable to secure alternative “learned counsel,” meaning an experienced death penalty attorney. Notably, Spath stepped down from the bench in August to assume a civilian position as an Immigration Judge with the Justice Department. Defense counsel have since argued that Spath’s undisclosed negotiation of this position was a conflict of interest that should have disqualified him from overseeing Al-Nashiri, a claim currently before the U.S. Court of Appeals for the D.C. Circuit. Air Force Colonel Shelly Schools will preside over future proceedings in the case.

Following the abatement, the government appealed Spath’s decision to the CMCR and asked the court to rule on several related legal issues that had contributed to Al-Nashiri’s delay, including whether the military judge or chief defense counsel has the authority to determine if there is good cause to excuse defense counsel and whether capital defendants before the military commissions have an absolute right to learned counsel. A divided three-judge panel granted the requested relief nearly in full, holding that:

(1) the three [civilian senior defense counsel (SDC), Richard Kammen, Mary Spears, and Rosa Eliades] established an attorney-client relationship with Al-Nashiri, and they entered appearances before the military commission on behalf of Al-Nashiri; (2) good cause is required before the SDC may be excused from representing Al-Nashiri; (3) the [chief defense counsel for the military commissions (CDC), Brig. Gen. John Baker] made the initial excusal decision without good cause because the SDC did not establish that the government intruded into Al-Nashiri’s attorney-client relationships; (4) the military judge properly overruled the CDC’s excusal decision; (5) the SDC are obligated to comply with the military judge’s orders to continue to represent Al-Nashiri; (6) counsel must obey the military judge’s orders unless a higher court overrules the military judge; (7) the CDC and Acting CDC abused their discretion and violated the Regulation for Trial by Military Commission (RTMC) when they failed to detail additional counsel to represent Al-Nashiri after it became apparent that the SDC would not return to represent Al-Nashiri and the military judge said he wanted to proceed with pretrial motions; (8) there is no absolute right to learned counsel; and (9) our Court declines to delay our decision pending litigation in the U.S. District Courts.

The panel reversed the abatement, but did not explicitly hold, as the government had urged, that Spath’s decision to abate was an abuse of discretion. Judge Pollard, concurring in part and dissenting in part, thought it clear that “the military judge did not abuse his discretion in abating the trial” because “[h]e had no other choice. The trial could not continue in the circumstances that the commission faced.”

Procedural Issues

As a preliminary matter, the court determined that it had jurisdiction to take the interlocutory appeal under 10 U.S.C. § 950d(a), which states that:

[I]n a trial by military commission under this chapter, the United States may take an interlocutory appeal to the United States Court of Military Commission Review of any order or ruling of the military judge—(1) that terminates proceedings of the military commission with respect to a charge or specification; (2) that excludes evidence that is substantial proof of a fact material in the proceeding…

Citing a similar statute governing military courts-martial and as persuasive precedent various courts-martial cases involving interlocutory appeals, the court held that “the military judge’s abeyance decision was predicated upon a situation that is intractable, and the abeyance is the ‘functional equivalent’ to dismissal of the charges.”

The court also held that it had pendent jurisdiction to decide whether: (1) good cause was required before the civilian attorneys could be excused from representing Al-Nashiri; (2) there was good cause to excuse SDC; (3) Brig. Gen Baker’s decision to excuse SDC was reviewable by the military judge or our Court; (4) SDC are obligated to comply with the military judge’s order to continue representation of Al-Nashiri; and (5) capital litigation proceed without learned counsel. Asserting pendent jurisdiction is generally only appropriate “when substantial considerations of fairness or efficiency demand it… such as when a nonappealable order is ‘inextricably intertwined’ with an appealable order or (2) when review of the former decision is necessary to ensure meaningful review of the latter.” In this case, the court found that all five of the identified issues were “inextricably intertwined” with the abatement order, and must be addressed “to ensure meaningful review of the abatement order.”

Judge Pollard dissented from the majority’s determination of pendent jurisdiction, finding the scope to be too broad. He would have limited the court’s review to “(1) the obligation to obey the military judge, (2) the need for and failure of Senior Defense Counsel to obtain the military judge’s approval for (a) their excusal for good cause and (b), separately, their withdrawal as counsel of record, and (3) the qualified right to learned counsel,” and declined to consider “the military judge’s (a) finding that the United States did not intrude into the attorney-client communications between Al-Nashiri and his defense counsel… and (b) ruling that there was no good cause for the termination of Senior Defense Counsel’s attorney-client relationship with Al-Nashiri.”

The panel unanimously rejected defense counsel’s request that it abstain from resolving the appeal until habeas actions that Baker and defense attorney Richard Kammen have pending in federal court in the District of Columbia and the Southern District of Indiana, respectively, can be resolved. It held that the CMCR may proceed because it is required by statute to address appeals expeditiously and “because we do not know whether the District Court for the Southern District of Indiana will adjudicate the merits of the same issues we address in this decision, and even if it does, whether the district court’s decision would result in a holding different from our Court on those issues.” Judge Pollard, concurring in this part, added that:

Mr. Kammen made no effort to bring before this Court the military judge’s rulings and orders he believed were erroneous. Mr. Kammen’s failure to present the dispute to this Court when he should have, completely undercuts appellee’s argument that we should defer to collateral litigation Mr. Kammen commenced elsewhere to resolve fundamental issues affecting Al-Nashiri’s trial.

Dismissing Defense Counsel

To determine whether Baker had the authority to unilaterally excuse Kammen, Spears, and Eliades, the court looked to provisions in the Rules for Military Commissions (R.M.C) and the military commission Rules of Court (R.C.), as well as to parallel provisions in the Rules for Courts-Martial (R.C.M.). The court acknowledged that, under R.M.C. 505(d)(2)(B), the individual responsible for detailing defense counsel—in this case the chief defense counsel, Brig. Gen. Baker—has the authority to excuse counsel upon a finding on the record of good cause. But under R.C. 4.4, it noted, “[a] defense counsel who has entered an appearance in a Commission session will not be excused without permission of the Military Judge.” Between the Rules for Military Commissions and the Rules of Court, the Rules for Military Commissions take precedence: R.M.C. 108 allows for the creation of Rules of Court but specifies that they may not be inconsistent with the Rules for Military Commissions.

The panel also looked to the courts-martial context, where military judges are required under R.C.M. 505(d)(2)(B) and 813(c) to ensure “that the record sets forth the basis for the good cause determination.” They must then “find as a matter of law that good cause has been established to excuse counsel.” Although there is no parallel provision in the R.M.C., the CMCR judges nevertheless interpreted the Rules of Court as filling in the gap and setting up the same structure: “After good cause is shown on the record, defense counsel also must secure approval of the military judge before they are excused and released as counsel. See RC 4.2.a(3), 4.2.b, 4.2.c, 4.4.b. These RC provisions are in addition to the provisions for excusal of defense counsel under R.M.C. 505(d)(2)(B).” The court also briefly addressed, and rejected as inapposite, federal court precedents seemingly cutting the other way and limiting a judge’s discretion to deny a withdrawal.

Finally, the court considered applicable state rules of professional conduct, which direct that “[w]hen a lawyer has been appointed to represent a client, withdrawal ordinarily requires approval of the appointing authority…. Similarly, court approval or notice to the court is often required by applicable law before a lawyer withdraws from pending litigation.” These regulations, in the court’s view, bolstered Judge Spath’s position.

The court affirmed Spath’s rulings on the matter, rejecting the validity of civilian defense counsel’s withdrawal from the case and Baker’s assertion of the unilateral authority to dismiss them, and finding that civilian defense counsel have “a legal and ethical duty to resume representation of Al-Nashiri.”

Proceeding Without Learned Counsel

The court likewise agreed with an earlier ruling by Spath that Al-Nashiri does not have an absolute right to learned counsel. As a result, it held that proceedings can continue even if Kammen does not return and the CDC does not appoint new learned counsel for Al-Nashiri.

Under the Military Commissions Act, 10 U.S.C. § 949a(b)(2)(C)(ii), capital defendants are statutorily guaranteed learned counsel only “to the greatest extent practicable.” That said, R.M.C. 506(b) does not feature this same qualified language in laying out a defendant’s right to capital counsel. The CMCR declined to read R.M.C. 506(b) narrowly as urged by defense counsel, stating instead:

To the degree that R.M.C. 506(b) and RTMC ¶ 9-1.a.6 are read to expand what 10 U.S.C. § 949a(b)(2)(C)(ii) requires, they exceed the rule-making authority granted by Congress to the Secretary of Defense in 10 U.S.C. § 949a(a). The Secretary’s authority is limited to promulgating rules that are “not . . . contrary to or inconsistent with this chapter.” 10 U.S.C. § 949a(a). Any expansion of the right to learned counsel in R.M.C. 506(b) and RTMC ¶ 9-1.a.6 to an absolute right, as Al-Nashiri argues, is both “contrary to [and] inconsistent with” the limited right established by 10 U.S.C. § 949a(b)(2)(C)(ii). Id.

Accordingly, the court determined that Al-Nashiri was only entitled to learned counsel to the “greatest extent practicable.” In determining whether providing learned counsel was practicable during the period in which Spath ordered that proceedings move forward without one, the court considered: (1) whether the proceedings were at a “critical stage”; (2) the qualifications of the defendant’s non-learned counsel; (3) the amount of delay likely to result from the absence of learned counsel; and (4) other relevant factors. Based on these factors, it determined that doing so was not practical, and that Al-Nashiri’s right to learned counsel was thus satisfied.

Judge Pollard, concurring, added that, in his view, the “absence of learned counsel’s participation in this appeal is self-created and, in the circumstances presented, cannot be the basis to delay the resolution of any issue properly raised by the government’s appeal.” Al-Nashiri had learned counsel—Kammen—detailed to his defense at all relevant times; “[t]he fact that Mr. Kammen refuses to perform his duty has no effect on this result.”

Intrusions into Attorney-Client Communications

Finally, the majority also affirmed Spath’s determination that there was no evidence of government intrusion on defense communications and, consequently, that there was no good cause for the withdrawal of the civilian defense attorneys. While the brief laying out defense counsel’s arguments remains classified, the court repeated Spath’s finding that no evidence of an intrusion had been brought forward. It went on to hold that, for there to be a Sixth Amendment violation warranting relief, there would have to be evidence of both an intrusion and prejudice under Weatherford v. Bursey, which the court held out as the proper standard despite defense arguments to the contrary. If evidence of an intrusion were brought forward, the court noted, then it would be up to the military judge to make findings of fact and conclusions of law in determining how it should be handled.

Judge Pollard dissented from these holdings and rejected the court’s assertion of pendent jurisdiction to decide the issues, arguing that there was no sufficient link between the abatement order under review and the findings on intrusions to warrant review. He also objected to the majority’s reliance on materials not contained in the trial record, and not properly added as supplementary material, in reaching its conclusions.


The CMCR held that Kammen, Eliades, and Spears remain detailed to Al-Nashiri’s case and are subject to the jurisdiction of the commission and the orders of the military judge, now Col. Schools. The court did not, however, expressly order the attorneys to appear at Guantanamo when proceedings resume. As Judge Pollard put it, the attorneys “are required to return to the courtroom and represent Al-Nashiri before the commission,” but “[w]hether as an Article I appellate court we have inherent power or some other authority, such as under the All Writs Act, 28 U.S.C. § 1651, to issue such an order is a difficult question that the Court rightly leaves to another day.”

The calendar for the military commissions shows that the courtroom is reserved for Al-Nashiri through October. When precisely proceedings will resume, however, remains unknown.

Sarah Grant is a graduate of Harvard Law School and previously spent five years on active duty in the Marine Corps. She holds an MPhil in International Relations from the University of Cambridge and a BS in International Relations from the United States Naval Academy. The views expressed here are her own and do not reflect those of the Department of Defense, the Marine Corps, or any other agency of the United States Government.

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