The slow, plodding case against the accused USS Cole bombing mastermind took a couple of sharp turns in recent weeks that left lead defense counsel, Indianapolis attorney Richard Kammen, even more frustrated and feeling a “profound sense of loss.”
Since 2008, Kammen, of Kammen and Moudy, has been representing Abd al-Rahim al-Nashiri who has been held as a prisoner of the United States since 2002. The attorney has shuttled back and forth to Guantanamo Bay, Cuba, for hearings, and he has made trips to Washington, D.C., to review the classified documents related to the case.
However, in mid-October, Kammen and his team quit after determining it was not ethical for them to continue their representation. The exact reason for the withdrawal is murky because much of the information has been deemed classified, but it appears to be related to the government listening to private conversations between the defendants and their attorneys.
Previously, microphones had been hidden in smoke detectors placed in the rooms where the lawyers and their clients met. Although the government had since offered assurances it was no longer eavesdropping, the defense discovered information that contradicted those promises.
An outside ethics expert consulted by Kammen and his team concurred they could not continue representing al-Nashiri. Also, in a separate review, Marine Brig. Gen. John Baker, chief defense counsel for the military commission defense organization, agreed the ethical situation required the civilian defense team be disbanded.
“I’m neither confirming nor denying anything about the al-Nashiri case other than what the chief defense counsel told us, that the government’s assurance was contradicted,” Kammen said.
A few days after the defense team exited, the Supreme Court of the United States denied al-Nashiri’s writ of certiorari. The central issue was whether al-Nashiri should be held as an enemy combatant at Guantanamo and subjected to the military commission system. Defense attorneys had argued the crime charged to their client occurred before United States had invoked its war on terror.
Kammen said the defense was trying to get the Supreme Court to authorize the lower courts to address the question of whether the U.S. was at war prior to 2001. The D.C. Circuit Court of Appeals declined to consider al-Nashiri’s petition and with the rejection by the nine justices, the issue will likely not return to federal court unless appeals are filed following the defendant’s trial. That trial might not take place until 2025 or later.
In the latest twist, Kammen and the defense team had been ordered to return to Guantanamo Bay after they withdrew from the case. The Miami Herald reported that the judge in the al-Nashiri case, Air Force Col. Vance Spath, did not find cause for the civilian attorneys to quit and ordered them to return to the detention center for a hearing.
None of the attorneys went back. “A military judge ordered civilians to go to a foreign country to provide unethical legal service,” Kammen said. “It is our view, and the view of the legal ethicist, that it is an illegal order.”
Kammen, who has represented defendants in serious criminal matters all around the country for 40 years, has long been openly critical of the military tribunals convened to try suspected terrorists. When he has been at hearings at Guantanamo Bay, he wears a kangaroo pin on his lapel, as a reference to the system being a kangaroo court.
Also talking recently about the turn of events, he peppered his conversation with the term “real court” to describe the federal judicial system. He said the situation that led to his withdrawal likely would not have happened in a federal court.
After defending al-Nashiri for so long, Kammen struggled to describe his feelings at having to step down. Because much of the information surrounding the circumstances is classified, none of the defense attorneys could meet with al-Nashiri or tell him why they could no longer represent him.
Kammen said he came to like al-Nashiri and he did want to see the case through to the end. But, he explained episode after episode had occurred until the situation came to a point where he “felt dirty” and that he was enabling a system that he deems unethical.
The petition to the Supreme Court contains the details of al-Nashiri’s treatment in captivity and raises questions about his ability to mastermind an attack on a U.S. Naval vessel.
Parts of the petition are redacted but there is ample description of his torture. The harsh treatment al-Nashiri endured included being waterboarded; being forced to kneel and bend backwards with a broomstick behind his knees; having his elbows cinched behind his back and then being hoisted to the ceiling; being locked in a box the size of an office safe; being hooded, stripped naked and shackled to the ceiling, then having a having a handgun cocked and a power drill revved near his head.
Furthermore, the defense pointed out al-Nashiri’s cognitive limitations. He did not graduate from high school until he was 25 years old and he has shown signs of a mental disability. In fact, one of the interrogators is quoted in the petition as having described al-Nashiri as “the dumbest terrorist I have ever met.”
A lot of the treatment al-Nashiri endured in CIA custody could not be made public. The parts that are classified, Kammen said, detail torture that is “much, much worse.”
Kammen was originally recruited by the American Civil Liberties Union to defend al-Nashiri. The decision to quit left him a feeling “very much a sense of emptiness.” He plans to continue to speak against the Guantanamo Bay detention camp and the military commissions. Yet, he doubted many people, outside a narrow section of the bar, are interested in what is happening.•