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Lone Navy defender refuses to question witness in USS Cole hearing

Three civilian defense lawyers who quit the USS Cole case defied the trial judge’s order to appear in court on Friday by video feed from Virginia. But the judge went forward with a pretrial hearing anyway, without participation of a defense attorney.

“No one’s here, sir,” a technician told Air Force Col. Vance Spath, the judge, in a live feed from military commission headquarters in Alexandria, Virginia.

Spath noted the absence of Department of Defense defense attorneys Rosa Elaides and Mary Spears as well as Richard Kammen, the long-serving, capital defense attorney on contract for accused terrorist Abd al Rahim al Nashiri, until all three quit over a secret ethical issue.

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Then the judge plunged ahead with pretrial hearings and testimony from an FBI agent.

The morning testimony looked routine. Lead prosecutor Mark Miller asked FBI agent Stephen Gaudin, brought in from the U.S. Embassy in Abu Dhabi, about decade-old interrogations of various key case witnesses, including the alleged mastermind of the Cole bombing, who was sitting in court.

But the testimony was unusual in this respect: Defense attorneys had sought to question the agent as part of an ongoing bid to exclude certain evidence from the trial. Nashiri’s only attorney in court, Navy Lt. Alaric Piette, refused to question Gaudin. The lieutenant, who has practiced law for five years, said he was bound not to question the witness unless there was a defense attorney with experience in the practice of death-penalty cases in court. So Miller did.

“We are not participating due to the fact that I am not qualified as learned counsel,” said Piette, a former Navy SEAL and 2012 graduate of Georgetown Law with no experience in a death-penalty trial.

Air Force Col. Vance Spath

Later, the USS Cole prosecutor angrily denounced the civilian defense attorneys’ absence as part of a “scorched-earth strategy to disrupt by any means, however frivolous, or however cynical.”

Miller, an assistant U.S. attorney on loan to the case from the New Orleans office, accused Marine Brig. Gen. John Baker, chief defense counsel for military commissions, of colluding with the civilians to try to halt the trial.

Kammen, Eliades and Spears quit the case last month with Baker’s permission. Spath sentenced Baker to 21 days confinement in his quarters, a trailer behind the courthouse at the Camp Justice compound, for refusing to return the three civilian attorneys to the case.

The senior Pentagon official overseeing military commissions, Harvey Rishikof, suspended that sentence Friday afternoon, the general’s third day of confinement, pending a review. Pentagon spokesman Air Force Maj. Ben Sakrisson said Baker was delivered a letter Friday afternoon “notifying him that the imposition of the remainder of his sentence was delayed until [Rishikof] makes a final decision on the matter.”

RELATED: Chief defense counsel released from contempt sentence in USS Cole case

At left, resigned defense attorney Richard Kammen at Guantánamo’s Camp Justice on June 14, 2013, sporting a kangaroo lapel pin. At center and right, in courtesy photos, are attorneys Rosa Eliades and Mary Spears. CAROL ROSENBERG

Miller accused Piette of adopting a “potted plant defense,” and said the 17 American sailors killed aboard the USS Cole off Yemen on Oct. 12, 2000, “deserve justice.”

Nashiri, a 52-year-old Saudi, is accused of orchestrating the al-Qaida suicide bombing and could be executed if convicted.

Miller dismissed the ethical excuse as “factually and legally vacuous.” He decried their outside ethics opinion as the work of a known opponent of military commissions. And he accused the general of conspiring with Kammen and the others to excuse them.

Piette, who was serving as a SEAL at the time of the Cole attack, declared himself mindful of the victims, “my shipmates and their families.” He invoked a character from the TV show The Wire, Baltimore police detective Lester Freamon as saying, “all the pieces matter.”

“My duty is solely to the interest of Mr. al Nashiri,” Piette told the judge, repeatedly saying that as a lawyer with no capital experience he was not qualified to participate without a death-penalty defender in court.

He asked the judge to not look at the absence of Kammen, Eliades and Spears through Miller’s cynical prism, or as a trial strategy of choice. “Attorneys who care about their client, care about their job, care about justice aren’t willing to give up those things,” he said.

Brig. Gen. John Baker, moments after leaving his trailer, where he was confined for contempt of court, on his way back to work on Nov. 3, 2017. CAROL ROSENBERG

Piette also drew an Air Force analogy, saying an aircraft should not take off without going through a checklist and having all systems working. “Ground the plane until I can run around and find somebody” to serve as learned counsel, Piette asked the judge.

The judge replied that would be the responsibility of Baker, the chief defense counsel, but for his being confined to quarters. In his place, Spath said, Army Col. Wayne Aaron, the deputy chief defense counsel, should be hiring a lawyer learned in the practice of capital punishment defense.

In Washington, D.C., Friday afternoon, U.S. District Court Judge Royce Lamberth declined to weigh in on Spath’s authority to confine Baker for contempt of court, because of the decision to release the general pending review.

Still to be seen is whether Spath will rule Kammen, Eliades and Spears in contempt and order U.S. marshals to pick them up and deliver them to the video feed site in Virginia. It was the second time in less than a week that the three defense attorneys ignored the judge’s order to appear.

Kammen said the three lawyers filed preemptive habeas corpus or unlawful detention petitions in Indiana, Illinois and Virginia courts in case Spath ordered their arrest — a fact that the military judge noted in court Friday with some puzzlement, since he hadn’t decided whether or not to do it.

Sunday when they pointedly missed a flight to this remote base from the U.S., Kammen said Spath ordered “U.S. citizens to go to what the government claims is a foreign country to provide unethical legal services to keep the façade of justice that is the military commissions running. This order is illegal.”

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