[Pnews] Secret Surveillance and the Legacy of Torture Have Paralyzed the USS Cole Bombing Trial at Guantánamo

Prisoner News ppnews at freedomarchives.org
Mon Mar 5 11:40:23 EST 2018


  Secret Surveillance and the Legacy of Torture Have Paralyzed the USS
  Cole Bombing Trial at Guantánamo

Shilpa Jindia <https://theintercept.com/staff/shilpa-jindia/>- March 5 2018

_Last month, a_ judge at Guantánamo Bay suspended indefinitely the trial 
of Abd al-Rahim al-Nashiri, paralyzing one of the most high-profile 
cases to go before the island prison’s military commissions system. The 
February 16 decision ended a monthslong standoff with defense lawyers 
who claimed that they could not do their work for fear of government 

Nashiri’s story now spans four consecutive presidencies. The 53-year-old 
Saudi citizen faces the death penalty for his alleged role in the 
bombing of the USS Cole in October 2000, in which 17 U.S. sailors died. 
The audacious strike against the billion-dollar destroyer was the last 
of Al Qaeda’s escalating actions against U.S. targets before the 
September 11 attacks. More than 17 years later, the bombing and its 
alleged mastermind barely register in public memory.

The pretrial proceedings in Nashiri’s case have plodded onward in 
obscurity, with the trial finally set to begin this year, but the abrupt 
cessation has once again raised questions about the legitimacy of the 
military commissions. An outsized legal drama on the face of it, the 
collapse of the Nashiri trial offers a headfirst dive into the murky 
world of justice at Guantánamo, governed more by public apathy and 
secrecy than the rule of law.

Nashiri’s entire civilian defense team resigned last October, citing an 
irresolvable ethical conflict: They did not believe that they could meet 
with their client and work on the case without being spied on by U.S. 
government agencies. Because of the byzantine rules governing classified 
materials at Guantánamo, the lawyers still can’t explain exactly why 
they believe this to be the case to the public or to their client.

    “I don’t think the commissions have much legitimacy, but if the
    truth of these circumstances were to become known, what little is
    left of that legitimacy would evaporate.”

The lawyers who resigned included Nashiri’s death penalty lawyer 
(“learned counsel” in legal parlance), Richard Kammen, a veteran capital 
defense attorney who has led the team since 2008, and two other civilian 
lawyers, Rosa Eliades and Mary Spears, who joined in recent years. While 
numerous lawyers who have rotated in and out of the legal teams at 
Guantánamo have criticized the system, no team has resigned with such 
defiance – or such consequence. It has led to a crisis of authority, 
with Guantánamo’s legal defenders at loggerheads with a military judge. 
At times, the two sides seemed to be operating in different universes.

“The government is trying to hide what happened,” Kammen told The 
Intercept. “They do no want the public to know what is happening down 
there. I don’t think the commissions have much legitimacy, but if the 
truth of these circumstances were to become known, what little is left 
of that legitimacy would evaporate.”

_The controversy heated_

up in June 2017, when Marine Brig. Gen. John Baker, who supervises all 
of the defense teams at Guantánamo, sent a


warning that he could no longer assure defense attorneys of privileged 
conversations with their clients anywhere at the naval base. The inmates 
at Guantánamo are forbidden personal visitors, and their every 
communication is censored and monitored; conversations with lawyers 
were, in theory, the only private link they had to the outside world.

Baker issued the warning only six months after a judge’s explicit 
prohibition on “intrusive monitoring,” which came at the end of 2016 
after years of government intrusions and surveillance in Nashiri’s and 
other commissions’ proceedings. These included meeting rooms bugged with 
microphones hidden in smoke detectors and an FBI attempt to turn a 
defense lawyer into an informant. Baker’s memo admitted his “loss of 
confidence” that the ban was being observed.

Though government prosecutors told the court that the issue did not 
apply to Nashiri and his lawyers’ meeting spaces, Kammen’s team said 
that they subsequently discovered information specific to Nashiri that 
“unambiguously contradicted” this assurance. The exact information, like 
much else at Guantánamo, remains classified, but Kammen described it to 
The Intercept as a “metastasis” of the ongoing interference. (Eliades 
and Spears declined to be interviewed.)

The inability to guarantee confidential conversations with their client 
presented Nashiri’s lawyers with a critical ethical and professional 
quandary. Attorney-client privilege is the “essence of the legal 
system,” Ellen Yaroshefsky, a professor of legal ethics at Hofstra 
University, who has advised the defense team as an independent 
consultant, told The Intercept. “If you can’t give someone the assurance 
that everything they tell you is confidential, why would they tell you 

    Air Force Col. Vance Spath has called the defense claims of an
    ethical breach “fake news.”

However, the judge who has presided over the court at Guantánamo since 
2014, Air Force Col. Vance Spath, has called the defense claims of an 
ethical breach “fake news,” and has accused the defense of playing legal 
games to undermine the legitimacy of the commissions. Though Spath’s 
rulings on the matter remain classified, according to Nashiri’s 
attorneys, Spath concluded that Nashiri’s right to confidentiality means 
only that his attorney-client conversations won’t be used as evidence 
against him in court – not that they won’t be monitored at all.

Kammen and his team pursued several avenues to resolve the issue, 
including petitioning to tell Nashiri the exact nature of the intrusion 
and obtain further information. Spath denied them all. The lawyers 
provided what unclassified details they could, including a nine-page 
history of government interference and intrusion, to Yaroshefsky, who 
concluded accordingly that they had to resign.

Kammen, Eliades, and Spears submitted their resignations to Baker in 
October, who accepted and released them from the case. Nashiri’s 
remaining lawyer is Lt. Alaric Piette, a former Navy Seal who graduated 
law school in 2012.

_The resignations triggered_

a rippling crisis of authority that has now derailed the entire case.

Spath rejected Baker’s decision, holding that only he can dismiss 
counsel from the case. Considering the three lawyers’ resignations “null 
and void 
Spath has continually recalled them back to the war court, orders they 
have resisted. He held Baker – a Marine Corps general – in contempt and 
sentenced him to 21 days of confinement 
at Guantánamo, though in the end, another Pentagon official ordered him 
released after a few days.

The Pentagon’s Military Commissions Convening Authority simultaneously 
entertained proposals for a new “clean facility” for attorney-client 
meetings to try to assuage the lawyers’ concerns – but the specs for the 
facility include “control and listening rooms.” (The Pentagon declined 
to comment on the allegations of intrusion, citing ongoing litigation.)

Kammen described the options Spath gave him as “either come to GTMO and 
resume unethical representation or go to jail. Given the positions he 
took, I continued to feel that I had no choice but to continue to resist.”

Spath next hauled in Yaroshefsky to testify about her opinion. During a 
bizarre hearing in November, Spath continually posed hypotheticals to 
Yaroshefsky, questioning how her opinion would change if the underlying 
facts of the case differed. “I found it really troubling,” Yaroshefsky 
told The Intercept. “The entire idea that they would subpoena an 
ethicist and just basically say, ‘Well if the facts were different, 
would your opinion be different?’ – which is all they did – there’s no 
reason to subpoena an expert to do that.” She called 
it “weaponizing legal ethics” and said “it puts a chill upon lawyers 
seeking ethics advice if the ethicist is going to be challenged to go to 
a court somewhere or a facility to have to be given a series of 

“The most unfortunate piece of this is how personal it has obviously 
become for Col. Spath,” observed Michel Paradis, a Pentagon lawyer 
appointed to represent Nashiri in federal court. Paridis believes Spath 
“made a situation that was already touchy but resolvable worse and 
intractable. There are a number of things he could do to resolve this in 
a practical, reasoned way, but he seems to have undertaken this 
vendetta.” (In response to questions for Spath about his decisions, 
Pentagon spokesperson Cmdr. Sarah Higgins said, “I recommend relying on 
the trial transcript. … The record must be interpreted on its face.”)

It was unclear how the hearings could proceed without lawyers and 
especially, how a capital case could continue without a death penalty 
specialist. The general rule is that when the U.S. government seeks to 
execute someone, the court’s standards and procedures become more 
stringent, not less. Yet the hearings resumed in mid-January with the 
untested Piette sitting at the table with Nashiri. (Piette told 
the New York Times last month, “There is no way I qualify as learned 

Spath returned seemingly emboldened and determined to barrel through the 
defense’s opposition and ramrod the case to trial. He repeated his 
accusations that the lawyers’ resignations were simply a stunt, 
upbraiding Kammen for abandoning his client. While professing sympathy 
for Piette’s position, he nonetheless advised that he employ “self-help” 
to become trained as learned counsel, later suggesting 
<https://twitter.com/carolrosenberg/status/963106233266900994> that a 
short course would help a lawyer with no homicide experience to take on 
one of the most important capital cases in U.S. history.

However, just a month later, at the next hearing, after mulling over 
arrest warrants for Eliades and Spears, Spath abruptly changed course 
and shut down the trial for the foreseeable future. He delivered a 
30-minute statement on February 16 lambasting the “lawlessness” that had 
overtaken the proceedings. He voiced frustration with the mixed messages 
from the government about the alleged intrusion on the defense team’s 
communications, and urged declassification of more information.

The entire affair, he said, had shaken him. Referencing “rose-colored 
glasses,” he said, “I took a moment to clean them; they’re not as 
rose-colored today. … It might be time for me to retire, frankly.”

With that, Spath adjourned the proceedings and said he would not restart 
them until a superior court ordered him to do so.

_The government has_

appealed to the military commissions review to overturn Spath’s 
decision, and Piette has in turn asked that the appeal be dismissed, so 
it’s unclear if and when the case will restart.

The ethical issues underlying the current fiasco are hardly new to the 
military commissions at Guantánamo. As early as December 2003, a team of 
military lawyers was fired for refusing 
<https://www.theguardian.com/world/2003/dec/03/guantanamo.usa> to comply 
with a system that, among other violations of foundational legal 
procedure, forbade confidential conversations with detainees. Many 
lawyers refused to legitimize the early iterations of the commissions, 
which were quickly challenged and struck down by landmark Supreme Court 
decisions. Lawyers only entertained the notion of the military tribunals 
after the Military Commissions Act passed in 2009, which remedied the 
most “ostentatious excesses” of these tribunals, in Paradis’s words.

However, the 2009 law didn’t remedy the systemic ills of the 
commissions. A main problem, Paradis explains, is that “you have an 
entire system based around use of evidence derived from torture.”

He added that “outside agencies” – namely, the CIA, which tortured some 
of the detainees now on trial, including Nashiri – are primarily 
concerned about what will be revealed at trial.

“That’s why you have so much interference from outside agencies,” he 
said. “You don’t have this in an ordinary court system because normally 
outside agencies don’t have that much interest in the people being charged.”

    “When you have a court system that is largely designed to conceal
    and use evidence derived from torture, you have to write new rules.”

A second problem, he added, “is that it’s just a lot harder to create a 
court system from scratch, especially if you’re trying to do it on a 
remote island that creates its own logistical nightmare. Simply going 
there, doing these things, is physically difficult. When you have a 
court system that is largely designed to conceal and use evidence 
derived from torture, you have to write new rules.”

Nashiri’s case is one of the most deeply marked by torture 
Captured in mid-October 2002, Nashiri spent at least 1,370 days in CIA 
custody. He received the worst of the agency’s “enhanced interrogation 
techniques,” including waterboarding, despite his initial cooperation 
and the urging of some CIA officers that torture would damage the 
relationship that they had already built with him. While some of the 
graphic details are known – including rectal feeding 
being kenneled like a dog, and mock executions 
with a power drill and gun – much remains classified. Nancy Hollander, 
another civilian attorney who first met with Nashiri in 2008, describes 
his treatment at the CIA black sites as “experimentation of the worst kind.”

Guantánamo was once nicknamed “America’s Battle Lab,” a testing ground 
where the government could extract intelligence to wage the war on 
terror. The military commissions are an equally brazen attempt to create 
an experimental justice system, free from scrutiny and oversight. As 
they continue to cover up government crimes at the cost of justice for 
the victims and survivors of the USS Cole bombing, they should be seen 
as an experiment built to fail.

Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 https://freedomarchives.org/
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