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IndyBar: Rick Kammen, Guantanamo, Ethics and Why You Should Stick Around Saturday Morning of the Bench Bar Conference

May 16, 2018

On October 12, 2000, the USS Cole was attacked by suicide bombers while it was being refueled in Yemen. Seventeen American sailors were killed, 39 others were injured and Al-Qaeda took responsibility for the act of terrorism.

Eventually, Saudi Arabian citizen Abd al-Rahim al-Nashiri was alleged to have been the mastermind behind the USS Cole bombing. Nashiri was captured in 2002 and held for four years in a CIA “black site” where he was tortured. He was eventually charged for the USS Cole bombing in 2008 before a Military Commission in Guantanamo Bay. It was there in Guantanamo that Nashiri met legendary attorney (and IndyBar member) Rick Kammen who became Nashiri’s “learned counsel.”

What followed was a long and winding legal drama full of procedural mystery and classified information. We know that there were microphones in client consultation rooms, breaches of the attorney-client privilege and that Nashiri’s defense was compromised. This led to a national story about Rick Kammen and the members of his team requesting permission from the Chief Defense Counsel to withdraw from the representation of Nashiri because they felt they could not ethically remain on the case. The Chief Defense Counsel agreed and granted permission for Rick to withdraw. When the Chief Defense Counsel refused to rescind that permission, he was ordered to 21 days of confinement.

Meanwhile, back in Indianapolis, Rick was wondering about his own future as the judge on Nashiri’s case had ordered him back to Guantanamo and Rick was planning to remain in Indy. (You may recall the IndyStar headline from November 2017 which read: “Indiana lawyer avoids arrest – for now – amid claims of Guantanamo Bay government surveillance.”) It is a safe bet that those November days were not Rick’s favorite of his career.

In essence, Rick could 1) choose to return to Guantanamo and provide unethical and/or ineffective representation to Nashiri or 2) choose to risk an uncertain jail sentence from the judge. Rick chose to fulfill his ethical obligations and chose the latter.

Rule 1.16 of the Indiana Rules of Professional Conduct is pretty good at drawing bright lines about when you have to get off of a case for a client’s misbehavior. Those ethics decisions tend to be easy. But what do you do when your client has done nothing to render the representation unethical? What do you do when you want to stay on the case, you like your client, you have invested years of your career in defending a client and you are ethically compromised by the opposing party? What if your client’s father has promised you a place in Heaven, and you don’t want to risk jeopardizing that? (You may have to attend Rick’s session on Saturday of the Bench Bar Conference for that last question to make sense.)

Saturday morning of the Bench Bar is usually reserved for an ethics lecture and a speaker with a PowerPoint presentation and a few canned jokes that you have likely already heard before. (That speaker is usually me.) This year we are doing something different. While we will have a few slides and a few jokes (sorry) so we can make sure you get an hour of ethics credit, we will be interviewing Rick in front of an audience about his defense of Nashiri, the ethical considerations he faced and then we will allow the audience to ask some questions.

Although it has happened before, it is not often that there is a national story involving one of our members and his or her client. It is even less frequent that the story involves attorney ethics. We are fortunate that Rick Kammen has agreed to give us his time, and we hope that you will stick around Saturday morning of Bench Bar to take part in this unique opportunity. This year’s conference will be held June 14-16 in Louisville, Kentucky. See the conference agenda and register today at indybar.org/benchbar!•

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