Although ordered back to Guantanamo Bay, the civilian defense team for a suspected terrorist has remained in the United States.
Kammen & Moudy partner Richard Kammen, lead defense counsel for accused USS Cole bombing mastermind Abd al-Rahim al-Nashiri, quit for ethical reasons Oct. 13. He and his co-counsel had been ordered to appear at a hearing scheduled at the detention camp Oct. 30 but, Kammen confirmed, none of the attorneys boarded the flight which left Oct. 29 from Andrews Air Force Base and was bound for Guantanamo Bay.
“The military judge ordered civilians to go to a foreign country to provide unethical legal service,” Kammen said Monday morning. “It is our view, and the view of the legal ethicist, that it is an illegal order.”
The true nature of the ethical violation cannot be revealed because the federal government has deemed the information classified. However, the attorneys’ withdrawal appears to be linked to the government listening to privileged conversations between the defendant and his counsel.
“The fundamental problem,” Kammen said, “is extraordinary government misconduct and judicial indifference to that misconduct.”
Kammen and his team consulted an outside legal ethics expert who agreed they could not continue to represent al-Nashiri. Also, the chief defense counsel for the Military Commissions Defense Organization, Brig. Gen. John Baker, reached the same conclusion.
However, the judge in the case, Air Force Col. Vance Spath, did not find cause for the defense to exit and ordered them to return, according to the Miami Herald.
Kammen said he and his colleagues would be in violation of several rules in the Indiana Rules of Professional Conduct if they remained as al-Nashiri’s defense counsel. None of the defense attorneys have been allowed to tell the defendant, personally, that they have quit and why because of the classified designation. They were able to write him a letter and explain as best they could.
An experienced criminal defense attorney who has represented clients facing the death penalty, Kammen was recruited by the American Civil Liberties Union in 2008 to defend al-Nashiri.
The USS Cole bombing happened in October 2000 in Yemen, killing 17 U.S. Sailors and injuring 39 others. Al-Nashiri was captured in 2002 and held in CIA prisons where he was “brutally tortured,” Kammen said, before being transferred to Guantanamo Bay to face death penalty charges.