GUANTANAMO BAY NAVY BASE, Cuba
Rick Kammen, the long-serving war court defense attorney who quit the USS Cole case over a secret ethics conflict, has obtained a federal order preventing U.S. Marshals from snatching him in the United States and forcing him to appear at the Guantánamo war court by teleconference.
The concept is not far-fetched. A year ago, the USS Cole case judge, Air Force Col. Vance Spath, had U.S. Marshals seize a no-show witness named Stephen Gill from Gill’s home in Massachusetts, hold him overnight in a Virginia jail, and deliver him to war court headquarters. Spath also forbade anyone from telling Gill until after he testified that a federal public defender was offering to represent him.
Spath this week found Marine Brig. Gen. John Baker guilty of contempt of court for disobeying an order to return Kammen to the case — and ordered Baker confined to his quarters in a trailer park behind the court. A senior Pentagon official freed Baker, the chief defense counsel for military commissions, after 48 hours while the punishment is under review.
Pretrial hearings in the capital case against alleged terrorist Abd al Rahim al Nashiri went forward on Friday even after Kammen and two other civilian lawyers defied Spath’s order to litigate from Virginia.
The judge said he chose litigation that, in his opinion, didn’t require a capital defender while he postponed what to do about Kammen and colleagues Rosa Eliades and Mary Spears, Pentagon defense staff lawyers who quit the case as well. Kammen was paid the federal death-penalty defender rate of $185 an hour as an outside contractor. All three claimed they were ethically obliged to leave over a problem with attorney-client confidentiality they could not explain because of secrets at the terror prison.
Spath rejects their conflict, and prosecutors accuse them of deliberately trying to derail the trial, which is still in the pretrial phase and has no start date.
The resignations have stirred cascading questions about who has authority to let a defense attorney quit a Guantánamo case; over how much if anything can be done in a death-penalty case without a statutorily mandated qualified capital attorney, and over the reach of the court into the United States both to order attendance and punish.
And at least two federal judges are threatening to step in and restrain Spath.
In Washington, D.C., Friday, U.S. District Judge Royce Lamberth warned Justice Department lawyers that he would be watching what happens in the appeal process of Baker, the second-highest-ranking lawyer in the Marine Corp .
Lamberth was poised to rule on whether Baker’s detention was lawful at 2 p.m. Friday. A team of civilian, criminal defense lawyers charged that the general was denied due process. But at 1 p.m. the senior Pentagon official overseeing the war court, Convening Authority Harvey Rishikof, suspended Baker’s contempt sentence until Rishikof reviews it.
Then Friday afternoon, U.S. District Judge Tanya Walton Pratt in Indianapolis acted on what was essentially a preemptive habeas corpus petition submitted by Kammen’s lawyers in the city where Kammen has had a law practice.
Pratt imposed a two-part restraining order on Spath, Rishikof and Secretary of Defense Jim Mattis.
She prohibited U.S. Marshals from seizing Kammen and bringing him before Spath until she could, in Indiana, “hold a hearing on the merits.”
And she froze “any purported requirement” — pointedly not using the judicial word “order” — for Kammen to appear at war court headquarters in Virginia. Spath had ordered Kammen, Eliades and Spears to litigate by video link from Virginia this coming Monday and then this past Friday. Kammen declared Spath’s order “illegal,” and the three civilian lawyers did not show up.
Pratt gave Justice Department lawyers 21 days to respond in writing to her instructions. And she did not set a day for “a hearing on the merits.”
A records search of federal court dockets turned up no similar orders on behalf of Eliades and Spears, who have not returned telephone calls or emails from the Herald throughout the showdown with Spath.
Nashiri, held by the U.S. since 2002, is accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing of the warship off Aden, Yemen, that killed 17 U.S. sailors. He sat in court this week with a single defense attorney, Navy Lt. Alaric Piette, a 2012 Georgetown Law graduate who was a SEAL at the time of the bombing.
Piette consistently refused to question a witness or take positions, declaring himself not competent to litigate in the absence of a death-penalty qualified defender.
Hearings are due to resume Tuesday with more witness testimony. In addition, the prison is supposed to deliver a confessed terrorist to the war court Tuesday, in case Piette decides he has the authority to cross-examine prisoner Ahmed al Darbi.
Darbi testified in closed session for the prosecution in August. The deposition was captured on video because Darbi, a Saudi, has traded his cooperation for repatriation to a prison in his homeland in February. Only at Nashiri’s trial could the public get to see Darbi’s taped testimony, likely after lawyers for Nashiri argue to exclude the testimony because a death-penalty defender did not get to question him.