The Secret Ruling that Broke the Military Commissions
First published on Just Security.
Sixteen years after Sept. 11, 2001, and 17 years after two suicide bombers killed 17 sailors aboard the USS Cole, the death penalty trials of the Guantanamo detainees accused of planning the attacks have not even begun. That was supposed to change in 2018, the planned start date for the military commission trial of the alleged USS Cole bombing mastermind, Abd al Rahim al Nashiri. But Nashiri’s prosecution is now in limbo as a result of alleged governmental eavesdropping on his conversations with his lawyers; a secret judicial ruling that limited his right to attorney-client confidentiality; and the subsequent resignation of his civilian defense attorneys, Richard Kammen, Rosa Eliades, and Mary Spears. Kammen’s withdrawal in particular threatened to freeze any progress towards trial. Because the government is seeking to execute Nashiri for his alleged role in the Cole attack, the law requires that he be represented by counsel experienced in death penalty cases (known as “learned counsel”). Kammen had filled that role since 2008.
Air Force Col. Vance Spath, the military judge in the Nashiri case, has tried unsuccessfully for over a month to force the defense attorneys to return. Most dramatically, on Nov. 1, he held the chief defense counsel for the military commissions, Marine Brig. Gen. John Baker, in contempt of court for refusing to order the defense lawyers to resume their representation of Nashiri. Spath sentenced Baker to 21 days of confinement in his trailer in Guantanamo and a $1,000 fine. Guards immediately escorted Baker to his quarters to begin serving his sentence. (The Defense Department attorney who oversees the military commissions, Harvey Rishikof, released Baker from confinement on Nov. 3, and formally set aside the sentence on Nov. 21, although he upheld the contempt conviction as “correct in law and fact.”)
A far more modest step than imprisoning defense counsel would be to set aside a classified ruling Judge Spath issued on Sept. 20, which appears to have convinced Nashiri attorneys that they had no recourse other than resignation. The Project On Government Oversight (POGO) has filed a Freedom of Information Act request for an unclassified version of the opinion, which was summarized as follows in a motion by Nashiri’s attorneys:
Col Spath concluded, as a matter of law, that Petitioner’s entitlement to attorney-client confidentiality extends only to the prohibition on counsel for the prosecution using his attorney-client communications as evidence… Col Spath determined that Petitioner had no expectation of confidentiality when conferring with counsel, except insofar as his communications might be used against him in the military commission proceedings.
This would leave Nashiri and his attorneys with no recourse against eavesdropping by the CIA, which imprisoned, waterboarded, sexually assaulted, and otherwise tortured him from 2002 to 2006.
A History of Intrusions
On June 14, 2017, Brig. Gen. Baker sent a letter warning all the defense teams that he had lost confidence in the security of “all potential attorney-client meeting locations” at Guantanamo against government monitoring, due to “recently received information” that he could not publicly disclose.
Nashiri’s attorneys told a federal court that although the prosecution assured them the intrusion issue did not affect the spaces where they met with their client,
counsel subsequently discovered evidence that unambiguously contradicted the prosecution’s previous assurances. The factual basis for this representation is classified and Petitioner’s counsel is currently unsure of whether it may be provided to this Court. Petitioner’s undersigned counsel can represent to this Court, however, that the evidence is compelling and would provide no reasonable attorney with confidence that they could maintain attorney-client confidentiality, when meeting in such spaces.
The classified evidence that triggered the resignation of Nashiri’s counsel is the latest in a long line of incidents that caused military commissions defense attorneys to question the security of attorney-client communications at Guantanamo. Brig. Gen. Baker said in a speech in September that “for the system to work, defendants must have the ability to trust their lawyers and speak with them... The stark and depressing reality is - that down at Guantanamo, the defendants have no reason to trust their lawyers or think they can speak with them in confidence.” Every time defense attorneys “tell their clients they can speak frankly,” Baker said, “another government intrusion is revealed and defense counsel look at best like fools, and at worst like liars.”
In 2011, the year that this round of military commissions began, Guantanamo guards allegedly seized, copied, and translated all documents in all of the defendants’ possession, including documents marked as attorney-client privileged. In January 2013, the CIA cut the Guantanamo courtroom’s audio feed when a defense attorney began discussing the black site program. The military judge—who knew that his courtroom had a censorship button, but did not know that anyone could activate it remotely—ordered that the agency’s ability to cut the feed be disabled.
In February 2013, defense counsel in the September 11 case discovered that what appeared to be smoke detectors in the attorney-client meeting rooms were in fact listening devices. In 2014, the FBI attempted to recruit a member of one of the September 11 defense teams as a confidential informant regarding an alleged security violation by one of his colleagues. In February 2015, one of the accused in the September 11 case recognized his courtroom translator as a former interpreter at a CIA black site. There have also been severe security flaws in defense computer systems, and continued allegations of improper government seizure of the defendants’ legal papers.
Despite all these incidents, the prosecution has maintained that the defense communications are secure, and that any intrusions have been either inadvertent or narrow and justified for security reasons. In 2013, after the discovery of recording devices in the attorney meeting rooms, Brig. Gen. Mark Martins, the chief prosecutor for the military commissions, assured the court that the devices were not used to record attorney-client meetings, and “no entity of the United States Government is listening, monitoring or recording communications between the five Accused and their counsel at any location.” The prosecutors in the Nashiri case similarly told the court that “monitoring does not occur, has not occurred, and will not occur.”
Army Col. James Pohl, the chief judge for the military commissions and formerly the judge in the Nashiri case, ruled that the defense had not produced adequate evidence of government intrusion into their communication, but he also made clear that he considered any governmental eavesdropping improper. Pohl stated in an August 2013 opinion in the Nashiri case, “this Commission recognizes the sacrosanctity of confidential attorney-client communications, a legal right as much in force in these Commission proceedings as if the accused were on trial in a court-martial, state court or Article III federal court.” He declined to issue an order specifically forbidding government monitoring of attorney-client communications, noting that the government had “a preexisting legal duty” to protect attorney-client confidentiality and that such an order would be “superfluous.” (Pohl eventually did issue an order more specifically prohibiting any monitoring of attorney-client meetings in the September 11 case, but that occurred in 2016, after Spath had replaced him as the judge in the USS Cole case.)
The Defense Department and prosecution’s response to the recent allegations of eavesdropping have been notably less categorical than their denials in 2013. U.S. Southern Command (SOUTHCOM) stated in July that “the confidential nature of attorney-client communications is strictly observed by the military guard force in this location,” and that “no privileged attorney-client communications have been heard by anyone in a law enforcement or prosecution role.” Military commissions prosecutors have used exactly the same language. Both statements lack any assurances about possible monitoring by the CIA, or by the intelligence community more generally.
The Department of Defense did not respond to requests for clarification as to whether it was still true that no agency or entity of the U.S. government—including intelligence agencies—had monitored or overheard military commissions defendants’ conversations with their lawyers. A CIA spokesperson also declined to comment.
The Nashiri Attorneys’ Withdrawal
In an interview, Nashiri’s former lead counsel, Rick Kammen, said that while he could not discuss specifics about the evidence of intrusion that led him to withdraw, “the government made assurances to us and the commission that our communications were secure. Those assurances have been completely contradicted.”
The concerns about monitoring may be especially acute in Nashiri’s case because he had been meeting with his lawyers at a different location from the other military commissions defendants. In 2012, a military judge granted the defense’s motion that their client be unshackled at attorney-client meetings to avoid traumatic reminders of his time in CIA custody. Kammen confirmed that “we do meet in a different space,” but he could not describe it further because “I’m honestly not sure whether it’s classified.”
When, at a hearing on Aug. 4, 2017, the defense team first alerted Col. Spath to the classified evidence of intrusion they had discovered, there was little hint of the conflict it would cause. Kammen told the court that the defense was requesting to meet with their client in the courtroom “as opposed to the other location…. I think you’ll see why when you have the chance to see the declaration that we filed.” That same day, Nashiri’s attorneys attempted to file a classified document ex parte—meaning that it would be seen only by the military judge, not the prosecution. Judge Spath told the defense that the document was “not appropriate for ex parte filing,” and ordered them to provide a copy to the prosecution. The judge did allow the prosecution to file a related 16-page classified motion on Aug. 24 without providing a copy to the defense. There were no court hearings, classified or unclassified, between Aug. 4 and the Sept. 20 ruling that limited Nashiri’s right to confidentiality.
Kammen said that Spath’s ruling badly misstated the law on attorney-client confidentiality. The obligation to protect a client’s confidences extends to all outsiders, not only opposing parties in litigation: “If someone’s listening, the conversation is not privileged,” he said.
Georgetown University Law Professor David Luban said in an interview, in response to defense attorneys’ description of Spath’s classified ruling, that “as a matter of law [the ruling] just sounds completely wrong.” The purpose of attorney-client confidentiality “is to avoid chilling conversations,” Luban said, and “knowing that someone who is an adversary is listening in would defeat the whole purpose.”
James Connell, lead defense counsel for accused September 11 co-conspirator Ammar al-Baluchi, noted that an attorney’s duty to protect client confidences applies to any outside party, not only the government. “If any lawyer knows that their conversations with clients are being overheard by a third party, they have a duty to attempt to stop the leak, to explain to the client the problem, and in a worst-case scenario, to stop the communications,” Connell said.
On Sept. 20, Spath issued his classified rulings that narrowed the scope of attorney-client confidentiality; denied defense counsel’s motions for discovery and an evidentiary hearing into the alleged government intrusion; and denied a motion for permission to carry out attorney-client meetings in an alternate, more secure area of the courtroom instead of their usual meeting space. Spath had previously forbidden the attorneys from sharing any classified information with Nashiri, including the Sept. 20 ruling and the underlying evidence of government monitoring.
Nashiri’s lawyers brought Spath’s Sept. 20 rulings and the underlying evidence to Baker. They also sought an ethics opinion from an outside expert, Professor Ellen Yaroshefsky, based on an unclassified summary of the facts. Yaroshefsky told the defense lawyers that, since the attorneys had no “available judicial or other recourse to challenge your inability to communicate confidentially” or even fully explain the situation to their client, they were ethically obliged to withdraw from the case. On Oct. 11, Baker found that Nashiri’s three civilian lawyers had good cause to withdraw.
Lead USS Cole civilian prosecutor Mark Miller has characterized the defense team’s concerns about confidentiality as “factually and legally vacuous,” and the three civilian attorneys’ withdrawal as “a scorched-earth strategy to obstruct the proceeding by any means, however frivolous, however cynical.” Specifically, Miller said, the defense was engaging in a series of “excuses…connivances, frivolous motions, with the knowing assistance of General Baker,” designed to “run out the clock” on the cross examination of a key prosecution witness. That witness, Ahmed al-Darbi, is currently detained at Guantanamo but is scheduled to be transferred to Saudi Arabia next year.
The prosecution asked the judge to proceed with scheduled testimony without defense attorneys, and to formally find that the defense lawyers’ absence was “a chosen defense strategy.” Spath has done exactly that, stating that the defense’s withdrawal was “a strategic position not supported by the rulings or the law.” If appellate courts agree, this would prevent Nashiri from later challenging his conviction or sentence on grounds that he had not received effective assistance of counsel.
Asked about the specific allegation that the defense was trying to prevent al-Darbi’s testimony, Kammen replied, “My response is, if the government will declassify everything… they’ll see that this is not a bad faith attempt at anything.” After they learned of the intrusion, and the judge ruled that monitoring by entities other than the prosecution was lawful, “it was our judgment that we could not wait,” he said.
How Intelligence Agency Monitoring Would Undermine the Defense
We can only guess at the reasoning of the classified Sept. 20 opinion finding that only monitoring by the prosecution would be an unlawful violation of attorney-client confidentiality. But the judge may have relied on analogous regulations in the federal prison system, which provide for “special administrative measures” (SAMs) to protect national security in certain terrorism cases.
Those regulations state that inmates’ communications with their lawyers “may be monitored, to the extent determined to be reasonably necessary for the purpose of deterring future acts of violence or terrorism,” and that lawyer-client communications are not protected by privilege “if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal advice.” The rules rely on a “privilege team… consisting of individuals not involved in the underlying investigation” to ensure that privileged conversations are not retained or provided to investigators or prosecutors. The privilege team is prohibited from disclosing any information it reviews unless “the person in charge of the privilege team determines that acts of violence or terrorism are imminent” or “such disclosure has been approved by a federal judge.”
A recent report by the Center for Constitutional Rights and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School argues persuasively that, although these regulations “purportedly create a firewall where no official involved in prosecuting a case can listen to these privileged conversations, attorneys’ conversations are chilled nonetheless.”
The chilling effect of any intrusion on attorney-client conversations by the CIA at Guantanamo would be far more profound.
First, unlike under federal prison regulations, there was no advance notice to defense counsel of any monitoring, and there has been no notice at all to Nashiri and the other defendants. Second, the agency that disappeared and tortured the military commissions defendants is in no way analogous to a neutral privilege team. Even leaving aside the traumatic psychological effect that CIA monitoring would have on the defendants, the agency works closely with the prosecution to determine what evidence from its black site program will be provided to defense and what will be withheld on national security grounds. It controls so much of the relevant evidence that it is in effect a party to the litigation.
Rishikof, the Defense Department official who oversees the military commissions, seemed to recognize the legitimacy of the defense’s confidentiality concerns in his opinion upholding Brig. Gen. Baker’s contempt conviction. He wrote that he would
recommend to the Joint Detention Group that a ‘clean’ facility be designated or constructed which would provide assurances and confidence that attorney-client meeting spaces are not subject to monitoring. This clean facility would also be checked periodically to ensure compliance with confidentiality expectations by an independent team to ensure it remains free of listening and inappropriate monitoring devices.
Rishikof noted, though, that “this step is beyond the authority of the Convening Authority to direct.” Even if Guantanamo prison authorities decided to voluntarily follow his recommendation, it is hard to see how the Nashiri defense team could rely on it while Spath’s Sept. 20 order remains in place.
Nashiri has petitioned a federal district court to call a halt to his commission proceedings until he has qualified death penalty counsel in place. If granted, this would effectively force the government to finally, definitively address the eavesdropping concerns. Federal courts have previously postponed hearing Nashiri’s and other Guantanamo defendants’ legal challenges to the commissions until after a trial, verdict, and sentence. But allowing a complex death penalty trial to go forward without a death penalty lawyer, as the prosecution advocates, is not a viable alternative.