The war crimes tribunal system at Guantanamo Bay, often troubled throughout its 15 years in operation, became embroiled Wednesday in a high-stakes confrontation between a colonel and a general, with the general getting punished for contempt of the colonel’s court.
The jousting between the two military officers has gone on for days as Air Force Colonel Vance Spath prepared to start a new phase in the military commission trial of a Saudi Arabian national accused of plotting to bomb a U.S. Navy ship in Yemen 17 years ago.
Spath was deeply upset when Marine Brigadier General John Baker decided to release three civilian defense lawyers from continuing to represent the accused, Abd al Rahim al-Nashiri, because of their complaint that the prosecution has been spying on their legal discussions with their client. Brigadier General Baker is in charge of all military defense counsel at the Guantanamo tribunals.
Colonel Spath first ordered the general to wipe out his order so that the three civilian lawyers could be forced to return to Guantanamo to resume their defense of al-Nashiri as proceedings in that case were set to resume with witnesses on Thursday. When the general refused to back down on Tuesday, the captain held a hearing on Wednesday, ruled that the general could not even speak and then held the general in contempt and sentenced him to 21 days of confinement in his residence at the military prison base in Cuba.
That confinement, the judge concluded, would continue until the contempt finding could be reviewed by the Pentagon official in Washington, D.C., who supervises the entire military commission system at Guantanamo Bay.
In reaction to the contempt ruling and the confinement order, a lawyer for Brigadier General Baker was pondering a challenge that could be filed, perhaps later today, in civilian federal court in Washington to prevent him from being detained in his residence at the base until he could challenge the contempt ruling.
Meanwhile, another member of the al-Nashiri defense team, Navy Lieutenant Michel D. Paradis asked a civilian judge in Washington to block any further military proceedings against al-Nashiri, until he has a lawyer on his team who has experience in trying cases that could lead to the death sentence; al-Nashiri faces that sentence if convicted.
Senior U.S. District Judge Royce C. Lamberth, who for years has been handling a series of cases involving al-Nashiri’s legal fate, was told in the new motion that the federal law and the regulations creating the commission system require that an accused like al-Nashiri must have one defense lawyer “who is learned in law relating to capital cases.” Judge Lamberth has scheduled a hearing for Thursday morning in Washington.
The remaining defense lawyer on al-Nashiri’s trial team, Navy Lieutenant, Alaric Piette, has argued that he is not qualified to handle a capital defense, and has refused to submit filings so that the case could go forward with Piette alone acting as defense counsel. The presiding judge, though, has ordered Piette to proceed with the case.
Colonel Spath also has sought to require General Baker to arrange for either the return to Guantanamo of the three civilian lawyers who left the case or else for them to participate electronically. The three civilian counsel are Richard Kammen, Rosa Eliades and Mary Spears. Before they stepped out of the case, with Brigadier General Baker’s permission, they were advised by an expert on professional ethics that they had no choice but to exit from the case when they discovered that they could not have strictly confidential conversations with their client.
Judge Spath takes the view that only he can release defense counsel, and that he has authority to enforce that through a contempt proceeding against the general for refusal to back down on his order letting the three attorneys end their representation.
In trying to get the case stopped by pursuing a plea with Judge Lamberth in Washington, al-Nashiri’s lawyer conceded that the U.S. Court of Appeals for the D.C. Circuit, which has review power over the Guantanamo tribunals, had ruled that civilian courts must general stand aside until there is an actual comviction by a military commission. But the attorney contended that should not bar a challenge when what is at stake is a fundamental right guaranteed by federal law and regulations.
Al-Nashiri’s case had stretched out for years as he pursued a so-far-unsuccessful challenge to the authority of the military commission to try him. Just last month, the Supreme Court, without comment, refused to consider that challenge, setting the commission at Guantanamo free to move forward.
Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.
