Last week, the chief defense counsel for the Military Commission Defense Organization, Brig. Gen. John Baker, excused the civilian members of the trial defense team in the military commission of United States v. Al-Nashiri. This specific Guantanamo case relates to the bombing of the USS Cole in 2000. Among the attorneys who were excused was Abd al-Rahim al-Nashiri’s capital learned-counsel, Richard Kammen.
This announcement came as an understandable shock to many. The details remain largely classified, but the apparently sudden removal of these attorneys was precipitated by a series of events beginning in June of this past year. What can be said publicly is that it became impossible for al-Nashiri’s attorneys to meet their responsibility to protect the attorney-client privilege. The military judge presiding over the case issued a series of classified orders, which required petitioner’s counsel to advise al-Nashiri that they could not communicate confidentially with him. But they were also precluded by these orders from telling him the information that would be necessary to obtain his informed consent to the waiver of the privilege. It was an extraordinary dilemma.
Unsure of their ethical obligations, al-Nashiri’s trial counsel sought independent ethics advice and were informed that they were ethically obligated to withdraw. Baker reviewed this ethics opinion as well as all the classified information and classified orders at issue. He then concluded that good cause existed to excuse the civilian counsel pursuant to Rule for Military Commission 505(d)(2), which gives the chief defense counsel the ultimate authority over defense counsel in military commission cases. Al-Nashiri was informed of this decision by letter last Wednesday and notice of the attorneys’ excusal was filed with the military commission on Friday morning when it became public.
What this will portend for the al-Nashiri trial is unclear. On Friday afternoon, the only remaining military attorney on the case to have entered an appearance filed a motion to abate the proceedings while Baker determines whether substitute counsel can be found. Under the statute governing military commissions, an accused in a capital case is required to be represented at all times by so-called “learned counsel.” Capital trials are different from ordinary criminal trials, both legally and factually. The responsibilities of defense counsel are governed by a separate set of standards created by the American Bar Association. And accordingly, when an accused faces the death penalty, at least one of his attorneys must be qualified to conduct capital litigation. Kammen’s departure from the defense team, therefore, raises a serious legal obstacle.
Finding a replacement for Kammen, which will be necessary for the case to proceed, is likely to be difficult. Full disclosure, I have represented al-Nashiri in habeas and appellate matters for the past five years and have been made privy to the underlying facts concerning this issue. Based on what I know, current circumstances make any reasonable expectation of attorney-client confidentiality impossible. And as David Luban wrote yesterday on the Just Security, “No defense lawyer could competently represent a client under those circumstances, and incompetent representation is itself unethical.”
Complicating matters further, while some military counsel remain detailed to al-Nashiri’s case, they too confront the issue that led their civilian colleagues to be excused. Due to peculiarities in military law, the procedures for evaluating their ethical constraints are less straightforward than they are for civilian attorneys. But they are no less real: they put these officers in an extraordinarily awkward position, and the military attorneys too are now in the process of evaluating their ethical responsibilities in coordination with Baker.
Based on the facts that I know, this issue is unlikely to be limited to the al-Nashiri defense team. Counsel in the long-delayed September 11 case have, as of this morning, sought discovery respecting the factual underpinnings of the excusal of al-Nashiri’s civilian trial counsel. If they too determine that they are unable to preserve the attorney-client privilege, you can expect that this issue will have a wide-reaching impact on the military commission in Guantanamo more broadly. At a minimum, it will further postpone justice that has already been long delayed.
In what is a troublesome coincidence, these issues have arisen just as the Supreme Court denied review in the first two military commission cases to have reached the court in over a decade. (Full disclosure, I was counsel in both.) In the Bahlul case, the court declined to resolve the basic question of the military commission’s subject matter jurisdiction over domestic crimes. This was in the face of a splintered decision from the D.C. Circuit that ensures that no one will know what the law in Guantanamo really is for the foreseeable future. And in the al-Nashiri case itself, the court declined to review a 2-1 decision from the D.C. Circuit, which denied military commission defendants the right to challenge fundamental issues, such as subject-matter jurisdiction, via habeas corpus. Habeas corpus could have gone a long way to providing an prompt opportunity for the courts to settle the many important outstanding questions. Now everything will have to remain uncertain.
All of this comes as news reports suggest that the chief prosecutor, Brig. Gen. Mark Martins, may retire from the position after six long years. Martins has far exceeded his predecessors in his efforts to bring legitimacy and finality to these trials. But the military commissions have continued to falter for reasons, like this most recent issue with al-Nashiri’s trial counsel, that are wholly out of his control.
The military commissions have fallen into a state of dysfunction that even their worst critics could not have imagined a decade ago. They are phenomenally expensive, costing over a billion dollars in that time. And they have become a highly visible embarrassment to the legal system. The September 11 case involves the murder of 3,000 Americans and the moment that singularly defined the past two decades of American politics. If a trial ever occurs (which is by no means a foregone conclusion), the durability of any verdict is at best in doubt.
The Supreme Court appears to have retreated from the important issues that Guantanamo continues to pose. The D.C. Circuit as well has largely sought procedural devices, such as newly restrictive standards of review, that have enabled it to avoid deciding issues otherwise fairly presented. This is deeply unfortunate. The second of three military judges to preside over the trial of the September 11 case once described the military commissions as “a system in which uncertainty is the norm and the rules appear random and indiscriminate.” And as this newest issue involving al-Nashiri’s trial counsel demonstrates, the unwillingness of the federal courts to resolve what the law is has made the situation worse, not better, over time.