Court puts brakes on ordering Kammen to military trial

Indianapolis criminal defense attorney Richard Kammen won a reprieve Friday when the U.S. District Court for the Southern District of Indiana halted a military commission’s order that he continue representing a terrorism suspect held at Guantanamo Bay, Cuba.

Air Force Col. Vance Spath, military commission judge, had issued an order last week compelling Kammen to continue his representation of Abd al-Rahim Hussein al-Nashiri, the alleged mastermind of the 2000 USS Cole bombing. However, District Judge Tanya Walton Pratt on Friday issued a three-page order finding the federal court has jurisdiction over the military commission. She stayed Spath’s order.

Kammen had been under threat of being held in contempt if he did not travel to Virginia Friday and today to represent al-Nashiri via video conferencing in evidentiary hearings. Represented in federal court by Robert Hammerle of Pence Hensel LLC and solo criminal defense attorney Jessie Cook, Kammen maintained Spath had no jurisdiction over civilian lawyers and no authority to force him to render unethical legal services against his will.

Walton Pratt also ruled that any order from the military commission to either have Kammen arrested or seize his assets would be placed on hold and not executed until the Southern Indiana District Court could convene a hearing on its merits.

The government has until Nov. 24 to file a response to Kammen’s petition for Writ of Habeas Corpus and motion for declaratory judgment. The case is Richard L. Kammen v. Gen. James N. Mattis, in his official capacity as Secretary of Defense, et al., 1:17-cv-03951.

Kammen, who has been representing al-Nashiri since 2008, and the two other civilian attorneys withdrew from the case in mid-October after they learned the federal government had continued to listen in and monitor their privileged conversations despite assurances from the authorities that such intrusions had been stopped.

The chief defense counsel for the military commissions at Guantanamo Bay, Brig. Gen. John Baker, agreed Kammen and his co-counsel would be violating their ethical duties if they continued to represent al-Nashiri.

Baker excused the civilian defense attorneys but Spath did not find “good cause” for the excusal and ordered Kammen and his team to return to Guantanamo Bay. When the attorneys did not appear, the judge sentenced Baker to 21 days of confinement.    

In the transcript from the hearing, Spath asserted the rules not only required the civilian attorneys to continue their representation but also protected them from any charges of misconduct because they are acting under court order.

“…the manner of the defense community here has shown flagrant disobedience in the face of, frankly, centuries of precedent to the contrary, and that is a trial court issues orders and you either appeal, you get a stay, or you get assistance form a superior court,” Spath said.

Baker subsequently filed a petition of Writ of Habeas Corpus Nov. 2 in the U.S. District Court for the District of Columbia. His case is Brig. Gen. John G. Baker, United States Marine Corps v. Col. Vance Spath, United States Air Force, et al., 1:17-cv-02311.   

Al-Nashiri also turned to the federal courts, filing dual motions to stop his proceedings at Guantanamo Bay. On Nov. 2, Judge Royce Lamberth of the District of Columbia District Court, denied the motion for a temporary restraining order since al-Nashiri’s current round of hearings have already begun and are expected to continue until shortly before the Thanksgiving holiday.

The next day, al-Nashiri filed to withdraw his earlier motion for a preliminary injunction. He told the court that granting his motion to withdraw will allow him to file a more developed preliminary injunction motion in about a week.


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