Armed Conflict Criminal Justice & the Rule of Law Terrorism & Extremism

Al-Nashiri Abated Until Further Notice

Julia Solomon-Strauss, Sarah Grant
Saturday, February 17, 2018, 10:00 AM

In a remarkable turn in United States v. al-Nashiri, military judge Col. Vance Spath suspended proceedings on Friday, Feb.

Published by The Lawfare Institute
in Cooperation With

In a remarkable turn in United States v. al-Nashiri, military judge Col. Vance Spath suspended proceedings on Friday, Feb. 16, “until a superior court tells me to keep going.” Spath expressed dismay with the inability of the prosecution and defense teams to come to agreement on the declassification of information relating to the alleged breach in attorney-client confidentiality underlying recent disputes, which they had been unsuccessfully pursuing through normal channels for five months. He also reiterated his frustration with the intransigence of al-Nashiri’s civilian defense attorneys in refusing to participate as part of the defense team and the uncertainty surrounding his own authority to proceed in the absence of learned death penalty counsel.

The conflict over al-Nashiri’s defense team has been building for months. In November, Spath held Brig. Gen. John Baker, chief defense counsel for the military commissions, in contempt of court for letting attorneys Rosa Eliades, Mary Spears, and Richard Kammen leave the case. As became evident in subsequent litigation, the departing attorneys objected that they could no longer ethically represent al-Nashiri as they believed unnamed government agencies were breaching the confidentiality of their attorney-client communications. Since then, Eliades and Spears, who work full-time for the Defense Department, have refused to appear in court despite a subpoena and orders from Spath, and Kammen has secured a preliminary order barring Spath from compelling his in-person or video testimony. Lt. Alaric Piette, the only member of the defense team at trial, has repeatedly objected that he is not qualified to conduct the defense by himself and does not have the prior experience to serve as learned counsel, something that he maintains is legally required as al-Nashiri may face the death penalty. Spath has previously dismissed Piette’s concerns. Al-Nashiri’s defense team, meanwhile, filed in federal district court for a preliminary injunction enjoining any proceedings until new learned counsel could be assigned, which remains the subject of ongoing litigation.

On Tuesday, Spath ordered the prosecutors to draft warrants to seize Eliades and Spears, who argue that they cannot defend al-Nashiri due to ethical concerns about a breach of attorney-client confidentiality. Spath acknowledged that the arrest would not accomplish his goal of forcing the lawyers to rejoin the defense team because it would compromise their security clearances and jobs. But he felt strongly enough about their absence to ask the prosecution to issue the warrants anyway. On Wednesday, Spath backtracked from that request and said he was still considering whether or not to issue the writs. If he did compel Eliades and Spears to appear, it would be by video teleconference, meaning the attorneys would not be seized and brought in-person to Guantanamo. On Thursday, Spath acknowledged that even forcing the attorneys to appear by teleconference from the military commission headquarters in Virginia could create a conflict of interest with al-Nashiri that would result in Eliades and Spears having to leave the case. Venting his frustration, he contemplated whether he could get Defense Secretary James Mattis to testify about his awareness of the “rogue defense organization” at play in the military commissions system and what he planned to do to fix the situation.

In Friday’s 30-minute session, Spath reiterated his frustration and explained his decision to abate proceedings indefinitely. He concluded: “We need action. We need somebody to look at this process. We need somebody to give us direction. I would suggest it sooner than later, but that’s where we’re at.”

Stay tuned for a longer summary with more details on the past week’s proceedings in the coming days.

Julia Solomon-Strauss is a graduate of Harvard Law School. She previously worked at the Center on Law and Security at NYU School of Law. She holds an MPhil in Historical Studies from the University of Cambridge and an A.B. in Social Studies from Harvard College.
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.

Subscribe to Lawfare