Military Commissions defense attorney says proceedings “designed to conceal the truth” about the COLE bombing, torture
by Jeffrey S. Kaye
In what reporter Carol Rosenberg rightly labeled a “stunning setback” to the Guantanamo Military Commissions proceedings, the entire civilian defense team for supposed USS Cole bombing “mastermind,” Abd al Rahim al Nashiri, has resigned.
One of the things we can say is that the report is as good as it gets, but it’s still incomplete. I can’t tell you specifics, because I am not allowed to tell you what he’s told us. The government still seeks to classify his thoughts, his memories, his experiences. To the extent that there’s information that I’m aware of that’s not in that report, I can’t talk about it.The USS Cole was bombed on October 12, 2000 in Aden Harbor, Yemen. Seventeen people died, including the two attackers who approached the guided missile destroyer in a small boat. Thirty-nine people were injured. Al Nashiri faces the deaths penalty for his alleged role in the attack.
The resignation of Mr. Nashiri’s three civilian attorneys — lead attorney Richard Kammen, and attorneys Rosa Eliades and Mary Spears — followed an appeal to Brigadier General John Baker, the Chief Defense Counsel for the Guantanamo Military Commission, for an opinion about their ability to ethically continue as attorneys in the case.
The reason for the ethics question is classified. The attorneys are not even allowed to discuss the situation with their client, Mr. Nashiri but a press release from Mr. Kammen indicates that it is related somehow to repeated failures to assure attorney-client confidential communications at the Military Commission site at Guantanamo. (See below for full text, and also here for copy of original press release.)
There have been repeated violations of attorney-client confidentiality at Guantanamo.
As Ms. Rosenberg wrote in her October 13 article on these developments, “In June, the general advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo.
Brig. Gen. Baker said in a statement, “(“it was an easy decision to find good cause given the information presented by Mr. Kammen, Ms. Eliades and Ms. Spears and the facts as I know them”). Even earlier, in June 2017, Baker told the Chief Prosecutor at Guantanamo that he was recommending that defense attorneys not meet with their clients at Guantanamo, as the confidentiality of such meetings was compromised.
A November 16, 2016 ruling by M.C. Judge James Pohl on an “emergency defense motion” concerning violations of attorney-client confidentiality at Guantanamo reiterated many of the defense attorneys’ complaints, including the fact that trial testimony itself was monitored secretly by a secret government agency (presumably the CIA), and that apparent smoke alarm detectors at client-attorney meeting rooms at Camp Echo were in fact listening devices. But even the presence of video recordings at defense meetings were deemed okay by Judge Pohl, who granted no real relief to attorneys on their appeal.
According to Carol Rosenberg’s reporting, all three 9/11 defense teams have been prevented from commenting publicly on the eavesdropping particulars, indicating such eavesdropping “implicates a Top Secret intelligence program.”
Apparently, whatever guarantees the government has provided to lawyers about such attorney-client confidentiality have appeared to be worthless, and the ability to operate in a client’s interests, or have a client give informed consent about restrictions on his privacy, have been rendered impossible. (See these articles by attorneys David Luban and Michel Paradis.)
While all the above is outrageous in itself — as is the fact that Al Nashiri was tortured by the CIA for many months and held in secret prisons for years — the press has ignored one statement by Mr. Kammen that is worth highlighting.
In his press release (which was only published online in toto by Guantanano attorney H. Candace Gorman, while Mr. Luban provided a link), Mr. Kammen, who has worked thousands of hours on the Nashiri case since 2008, concluded (bold emphasis added):
The military commission system is a failed experiment. It does not provide fair or transparent justice, indeed it provides secret, hidden, and hopelessly unfair procedures designed to fool the public into believing that what it is seeing is an actual trial. It is not. It is an un-American façade of a court system that cannot provide fairness. And it [was] designed to conceal the truth about the COLE bombing and the torture the United States inflicted on Nashiri. No justice will ever come out of Guantanamo.
No one in the press and or blogging commenters have quoted the above. In particular, the claims the military commissions were “designed to conceal the truth about the COLE bombing” are extraordinary and worth of further examination.
Past reporting by Adam Goldman at the Washington Post (January 2014) described differences of opinion about al Nashiri’s culpability in the bombing, much less being a “mastermind”:
Agency officers clashed over the importance of Nashiri’s alleged role in the bombing of the USS Cole in Yemen in 2000; the attack killed 17 U.S. sailors.
“He was an idiot,” said the former CIA official, who supported the program. “He couldn’t read or comprehend a comic book.”
The U.S. government maintains that al Nashiri “was allegedly Al Qaeda’s operations chief in the Arabian Peninsula,” and in September 2004 a Yemen court tried in absentia and sentenced him to death for the Cole bombing.
Unlike, say, the case of Khalid Sheihk Mohammed, al Nashiri maintains his innocence, and the evidence against him is mainly hearsay, of a kind that wouldn’t be allowed in a civilian trial.
To a great extent, dragging out the Cole and 9/11 prosecutions over years has dulled the American population’s attentiveness to these cases. Outside of Carol Rosenberg’s reporting — and primarily because of being a reporter based in Miami, Guantanamo has become her “beat” — the military commissions get very little attention from the mainstream press.
But even Rosenberg didn’t mention the charges about concealment about the truth regarding the bombing of the USS Cole. What Kammen meant about the “truth” about the Cole case is not known, nor can he probably legally say.
Even details surrounding al Nashiri’s torture are not fully revealed, as Kammen told Cora Currier at The Intercept back in December 2014. Talking about the release of the executive summary to the Senate Intelligence Committee’s report on the CIA torture program, Kammen said:
One of the things we can say is that the report is as good as it gets, but it’s still incomplete. I can’t tell you specifics, because I am not allowed to tell you what he’s told us. The government still seeks to classify his thoughts, his memories, his experiences. To the extent that there’s information that I’m aware of that’s not in that report, I can’t talk about it.
Meanwhile, the Supreme Court refused to rule on October 16, on an appeal by al Nashiri’s attorneys concerning a pretrial hearing about whether his case should even be tried by a military commission. If nothing else, his years of torture by the CIA, including waterboarding and having a drill pointed at his head, should merit pretrial review of his case. But instead, such review will have to await the outcome of any military commission verdict, something that seems farther away than ever now.
What follows is the full text of Richard Kammen’s press release, dated October 13, 2017:
FOR IMMEDIATE RELEASE
Brig. Gen. John Baker, Chief Defense Counsel for the Guantanamo Military Commission, Disbands the Defense Team in the USS COLE Case.Today, Brig. Gen. John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, disbanded the trial team in the case of United States v. Nashiri. The circumstances surrounding this are highly classified. But Brig. Gen. Baker determined that doing so was necessary because it was no longer ethical for us to proceed.
As those following the military commissions know, there have been repeated intrusions into defense teams, which have compromised attorney-client confidentiality. This has included, in the past, microphones hidden in smoke detectors. In June, Brig. Gen. Baker learned of facts, which remain classified, that meant we could not have confidence that our communications with our client were in fact truly private. We filed a series of motions seeking to learn more. The prosecution initially advised the commission that the General’s concerns did not affect the location where we meet with our client. As we were allowed to say to the US Supreme Court, however: “Petitioner’s counsel then [REDACTED] contradicting the prosecution’s assurances.” This was followed by a series of classified rulings which placed us in the untenable position of having to advise our client that we could not visit him, but could not tell him why we could not visit him.
Because we were unsure of our ethical obligations, we sought advice from a nationally recognized expert in legal ethics. Based upon a completely unclassified description of the facts, she concluded that the Rules of Professional Responsibility obligated us to cease our participation in this case. We communicated our concerns and this opinion to Brig. Gen Baker, who had access to all the relevant information, including classified information and the classified orders. After a thorough review of the facts and relevant law, he too concluded that it was no longer lawful for us to proceed.
As every lawyer knows, attorney-client confidentiality is the bedrock of our legal system. It is the most fundamental component of the right to counsel and it is recognized the world over as necessary for a fair trial. In short, without getting into the details of matters that remain classified, we could no longer proceed as attorneys in this case because the military commissions failed to meet this most basic requirement of a fair trial. Indeed, as Brig. Gen. Baker concluded, no self-respecting lawyer could continue to act under these circumstances. He accordingly found good cause to relieve the civilian attorneys on Mr. Nashiri’s defense team. That includes myself, Richard Kammen, as well as Mary Spears and Rosa Eliades.
We have mixed emotions about this. We are angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice. The entire team gave this a lot of thought but in the end concluded that this decision was the only one available. Brig. Gen. Baker also concluded that this was the correct decision and issued the ultimate orders disbanding the defense team. The ultimate decision was his.
The military commission system is a failed experiment. It does not provide fair or transparent justice, indeed it provides secret, hidden, and hopelessly unfair procedures designed to fool the public into believing that what it is seeing is an actual trial. It is not. It is an un-American façade of a court system that cannot provide fairness. And it [was] designed to conceal the truth about the COLE bombing and the torture the United States inflicted on Nashiri. No justice will ever come out of Guantanamo.
RICHARD KAMMEN
richard@kammenlaw.com
Friday, October 13, 2017
