U.S. District Court Judge Royce Lamberth on Thursday denied defense counsel’s request to halt USS Cole hearings at Guantánamo, despite the refusal to participate by three civilian lawyers for the accused.
Within minutes of the denial, lawyers for Brig. Gen. John Baker, the chief defense counsel for military commissions, filed an unlawful detention petition in Lamberth's court. The USS Cole case judge, Air Force Col. Vance Spath, on Wednesday sentenced the Marine general to 21 days confinement in his quarters, in a trailer park behind the Guantanamo courthouse, for refusing to return the civilian counsel to their jobs.
The 20-page habeas corpus petition accuses the colonel of denying Baker “due process rights by depriving him of his liberty without giving him any opportunity to be heard.”
The case against Abd al Rahim al-Nashiri, the alleged mastermind behind al Qaeda’s Oct. 12, 2000 suicide bombing of the ship in Yemen, which killed 17 U.S. sailors, has been thrown into turmoil by the withdrawal of the lawyers, who say they are refusing to “provide unethical legal services to keep the façade of justice that is the military commissions running.” The lawyers resigned over an ethical conflict that has been kept secret.
Lamberth’s decision clears the way for a showdown Friday over whether the three lawyers who quit will report to an office building in Alexandria, Virginia, by 8 a.m. to litigate Nashiri’s case by video-feed to Guantanamo, as the trial judge, Spath, has ordered. Civilian Pentagon-paid attorneys Rick Kammen, Rosa Eliades and Mary Spears earlier in the week rejected Spath’s order to travel to the remote base for proceedings in the case.
At issue is who has the authority to release the three attorneys. Baker, who hires and fires defense attorneys, said he had sole authority to do so. Spath disagreed. He ordered Baker this week to rescind his excusal. Baker refused, and was found in contempt of the war court on Wednesday and immediately taken to the brig.
Baker, the second highest-ranking lawyer in the Marine Corps, was in the second day of his sentence -- confined to his quarters in a trailer park behind the courthouse complex called Camp Justice.
Michel Paradis, another civilian counsel for Nashiri, argued that the case has “gone off the rails” and described the trial process as “lawless.”
Justice Department attorney Ronald Wiltsie argued there would be no harm in the trial proceeding.
“While the government has an interest in ensuring that the proceedings at Guantanamo are fair, that interest is not compelling enough” to stop the proceedings, Wiltsie said in Lamberth’s courtroom Thursday.
Without Kammen, Eliades and Spears, Nashiri has no representation with capital experience. If found guilty, Nashiri could face execution.
The exercise over who can release an attorney of record is also testing the reach of the war court set up by President George W. Bush after the 9/11 attacks and reformed by President Barack Obama. A year ago, a USS Cole case prosecutor said the war court has no authority to force a reluctant witness to Guantanamo. Instead, Spath sent U.S. marshals to scoop up the witness, Stephen Gill, from his home in Massachusetts, hold him overnight in a Virginia cell and deliver him to the same video-feed site where he has ordered Kammen, Eliades and Spears to appear as Nashiri's counsel of record.
In that instance, a federal public defender sent a letter to the Guantanamo courtroom, offering to represent Gill, who was an un-mobilized Navy Reserves lawyer. Spath explicitly ordered that Gill not be told of the offer until after Gill had testified.
Kate Irby: 202-383-6071, @kateirby