Summary: Declarations Regarding the Removal of Military Commission Convening Authority Rishikof

Stephen Szrom
Friday, March 23, 2018, 11:11 AM

Pursuant to a Feb. 27 order from Col. James Pohl, the presiding judge in United States v.

Published by The Lawfare Institute
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Pursuant to a Feb. 27 order from Col. James Pohl, the presiding judge in United States v. Khalid Sheikh Mohammed et al. (the “9/11 case”), Defense Secretary James Mattis and acting Defense Department acting general counsel William Castle filed declarations with the Military Commissions Trial Judiciary on March 19, stating their reasons for and the circumstances surrounding the firing earlier this year of Convening Authority Harvey Rishikof and legal advisor Gary Brown. On March 20, Rishikof and Brown submitted a joint declaration presenting their side of the story. Pohl’s order was in response to a Feb. 9 motion to dismiss (Appellate Exhibit (AE) 555) by defendant Ammar al-Baluchi arguing that the removal of Rishikof and Brown constituted an effort to exercise “unlawful influence” over the convening authority and legal adviser. Both sets of declarations were leaked to the media on March 22.

The declarations indicate the following timeline of events:

On Jan. 29, Castle recommended that Mattis rescind Rishikof’s designation as convening authority and director of the Office of the Convening Authority for Military Commissions. Mattis approved Rishikof’s firing on Feb. 3; Castle fired Brown, designated as Rishikof’s legal adviser and chief of staff, shortly thereafter on his own authority without Mattis’s involvement. According to their declaration, Rishikof and Brown learned of their removals and were placed on administrative leave on Feb. 5 before their formal departure on Feb. 7.

Mattis explained that, in approving Rishikof’s firing, he considered Rishikof’s “management/corporate decision-making, professional judgment, and temperament,” not his “performance of any judicial or quasi-judicial acts.” Castle cited the same rationale for recommending Rishikof’s removal and firing Brown. Castle noted that in making those decisions, he did not consider any of the matters raised by al-Baluchi’s motion to dismiss.

According to Mattis and Castle, in January Rishikof and Brown requested that military aircraft provide aerial imagery of the Expeditionary Legal Complex at the Guantanamo Bay Naval Station, which Mattis and Castle called a “sensitive site.” After the combatant commander denied the request, Rishikof turned to the U.S. Coast Guard for aerial imagery. Mattis stated that Rishikof did not coordinate the Coast Guard request or inform “appropriate officials at Naval Station Guantanamo Bay, including security officials.” It is unclear from the declarations whether the Coast Guard conducted the aerial photography.

Castle’s declaration points to the Regulation for Trial by Military Commission’s duty descriptions for Rishikof and Brown’s positions, distinguishing Rishikof’s “judicial or quasi-judicial” duties as convening authority from his management duties as director of the convener’s office (two separate positions in the regulation). The declaration similarly holds Brown’s duties as the legal adviser to be distinct from his operations oversight duties as chief of staff. Castle stated that the January 2018 incident reinforced his worry, sparked by two previous incidents, that Rishikof and Brown should not manage the Office of Military Commissions. According to Castle, members of the Pentagon’s Office of General Counsel asserted in September 2017 that Rishikof and Brown oscillated between absent management and “needlessly disruptive and divisive” management. And in December 2017, Rishikof and Brown—acting as director of the convener’s office and the military commissions’ chief of staff, respectively—submitted a “management memorandum” to Patrick Shanahan, the deputy defense secretary, in which they made “proposals and recommendations that would impact organizational structures and responsibilities for multiple components, offices, and services[,]” but they allegedly failed to discuss this memorandum appropriately with the other components, including the general counsel’s office. Castle described this as contravening a 2015 directive from the deputy defense secretary directing the convening authority to coordinate with the general counsel’s office and other Pentagon components, “as appropriate, concerning whether amendments to the existing regulation or additional regulations would further the interests of justice in current and future Military Commissions cases.”

Rishikof and Brown stated they were both unaware of any issues with their performance that might have led to their removal. According to their declaration, as of March 16 no Pentagon official or supervisor had discussed with them their performance or a rationale for their firing, and they had therefore believed they remained in good standing. They noted that, beginning in the summer of 2017, they were directed to channel their communications with Shanahan through the general counsel’s office, with whom they communicated weekly and to whom they provided monthly status reports—in addition to the secretary and deputy secretary. Rishikof and Brown further expressed concerns that, based on subsequent inquiries, the general counsel’s staff did not communicate Rishikof and Brown’s actions to “the most senior officials in the most fulsome and timely manner.”

Rishikof and Brown expressed concern about the simultaneous removal of the convening authority and legal adviser. They also objected to the possible simultaneous appointment of two convening authorities as, according to the declaration, the Pentagon appointed the acting convening authority, Jim Coyne, before informing Rishikof of his removal.

Rishikof and Brown noted that some of their decisions and recommendations on various issues—which, they noted, concerned “conspiracy charges, capital charges, guilty pleas in the 9/11 and USS Cole cases, conditions of detention relating to military commissions, recommendations for the reorganization of DOD’s prosecutorial and security processes to provide for a unity of command to avoid potential ethical conflicts, review of contempt charges, and adequate funding of the defense”—were “undoubtedly” unpopular with some parties to the military commissions, but stated they did not know if this was a factor in their removal. Further, they assert that the general counsel staff did not communicate Rishikof and Brown’s actions to “the most senior officials in the most fulsome and timely manner.” Rishikof and Brown thought this might have spawned concern within the Pentagon about their future judicial decisions. Having not yet heard the rationale for their firing, the two hoped to “reserve the right to respond” to Mattis and Castle’s declarations. Rishikof and Brown closed their declaration by emphasizing the importance of protecting “the independence and judgment” of the legal adviser and convening authority.

Correction: A previous version of this post stated that both sets of declarations were released on March 22 following a security review. In fact, the declarations were leaked to the media and are still undergoing review.

Steve Szrom is a student at Harvard Law School and previously served as an Army infantry officer for five years. He graduated from Indiana University in 2012 with a BA in Political Science and Near Eastern Languages and Cultures. The views expressed here are his own and do not reflect the official policy or position of the Department of the Army, Department of Defense, or the U.S. Government.

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