Forgive me, but I have grown a little obsessed with what is going on in Guantanamo. Specifically, I have been following the Abd al-Rahim Hussein Muhammed al-Nashiri case from afar. I’m interested in the al-Nashiri case mainly because Hoosier attorney Rick Kammen represented al-Nashiri. Several months ago, Rick made headlines when he refused to return to Guantanamo because of the unethical conditions that the government and the court imposed upon him and the defense team. Since then, I have spoken to Kammen several times about the case – if you don’t believe me (plug alert), go to the “Off the Record” podcast (available on Apple Podcasts and Spotify) and listen to our conversations – and here is what I know:
The al-Nashiri matter contains a lot of stuff that interests me as a lawyer. It is a criminal case with a host of ethical issues. In addition, it has other stuff that the general public has been interested in for years: the death penalty, acts of terrorism, torture and issues over the limits of government power. But mainly, I’m interested in this case because everything that happens in the al-Nashiri matter just seems a little crazy.
Here is the quickest way I know to get you up to speed on the al-Nashiri case:
In 2000, al Qaida bombed the USS Cole and 18 people lost their lives.
Al-Nashiri was captured in 2002 and then spent several years in CIA “black sites” where he was tortured.
In 2006, al-Nashiri was brought to Guantanamo Bay, where his case is still pending today.
In 2014, Judge Vance Spath began presiding over the case. IN RE: Abd al-Rahim Hussein Muhammed al-Nashiri, 921 F.3d 224, 226-7 (D.C. Cir. 2019 Then, crazy stuff started happening to al-Nashiri’s defense team:
The chief defense counsel, who supervised al-Nashiri’s defense team, became concerned in 2017 that the attorney-client meetings were being monitored and therefore were not confidential.
Then, al-Nashiri’s lawyers found a hidden microphone in their attorney-client meeting room Id. at 228. But maybe the crazier thing was that Judge Spath wasn’t too interested in doing anything about these issues.
When defense counsel brought these issues to the court’s attention and asked permission to tell al-Nashiri about the issue, the court denied all motions and explained that it “lacked ‘any basis to find there had been an intrusion into attorney-client communications between [Al-Nashiri] and [his] defense team.’” Id. Because Kammen was concerned about how he could ethically proceed without being able to communicate confidentially with his client, he received an ethics opinion from Ellen Yaroshefsky, a professor of legal ethics at Hofstra University School of Law. Professor Yaroshefsky opined that Kammen was required to withdraw under Rule 1.16 of the Rules of Professional Conduct. Id. at 229
So Kammen and members of his team sought permission to be excused from the case, and the chief defense counsel granted that permission. But as tends to happen in this case, things got stranger:
Judge Spath disagreed there was “good cause … to warrant [the] excusal” of the attorneys and ordered the attorneys to appear.
When the lawyers refused to appear, Judge Spath proceeded without most of the defense team, including Kammen, the only death-penalty-qualified defense attorney.
Finally, on Feb. 13, 2018, Judge Spath “directed the government to draft writs of attachment for [the attorneys’] arrest so that, as he put it, he would have ‘options available.’”
Id. at 229-31.
At the least, I hope each person who reads this article will consider the desire to arrest defense counsel strange. That is to say, no matter how you feel about criminal justice, I hope, at this point in the story, you are on the edge of your seat, pulling for your fellow attorneys to avoid the clink. After all, as one great criminal defense lawyer once said, “If someone has to go to jail, it really ought to be the client.”
So did the attorneys go to jail? No. In a strange change of heart, on Feb. 16, 2018, Judge Spath abated the proceedings and gave a speech about his “frustration with the defense” and stated “[w]e need action from somebody other than me.” Id. at 231. Judge Spath just gave up, which was sort of sad when you look at it that way.
But when you look at it another way – with full information about what transpired – it wasn’t all that sad after all. You see, in 2015, Judge Spath had applied for employment as an immigration judge in the U.S. Department of Justice, and the day before the “action from somebody other than me” speech, Judge Spath had learned he had received that job. Id. at 226, 231. When this case reached the D.C. Circuit, it noted that “it is beyond question that judges may not adjudicate cases involving their prospective employers.” Finding that “the Attorney General was a participant in Al-Nashiri’s case from start to finish,” the D.C. Circuit held that Judge Spath had a “disqualifying appearance of partiality.” Id. at 226, 235-236.
According to the D.C. Circuit, “[t]he challenge Spath faced [after applying for a job with the Justice Department] was to treat the Justice Department with neutral disinterest in his courtroom while communicating significant personal interest in his job application. Any person, judge or not, could be forgiven for struggling to navigate such a sensitive situation. And that is precisely why judges are forbidden from even trying.” Id. at 236-237. To make the fact that he applied for the job worse, he did not disclose his job application during the proceedings and in his application, he “boasted” about his role as judge in al-Nashiri matter. Id. at 237. Perhaps unsurprisingly, when al-Nashiri’s lawyers submitted a request for discovery regarding the job application, the government refused, “calling the reports ‘unsubstantiated assertions.’” Id. at 231.
The D.C. Circuit went on to state that “[u]nbiased, impartial adjudicators are the cornerstone of any system of justice worthy of the label. And because ‘[d]eference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges,’ jurists must avoid even the appearance of partiality.” Id. at 233-4.
To remedy this situation, the D.C. Circuit vacated 460 of Judge Spath’s orders in order to “sufficiently scrub the case of judicial bias.” Id. at 240. And finally, in what had to be a gratifying moment for Kammen and his team, the Court stated:
“Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system — from the prosecution team to the Justice Department … to the judge himself — failed to live up to that responsibility.” Id. at 239-240.
This comment about the “shared responsibility” is a great reminder to all attorneys that whether we “win” or “lose” a case, when we live up to our ethical responsibilities, we enhance the public’s confidence in and the effectiveness of any system of justice.•
• James Bell — [email protected] — is an attorney with Paganelli Law Group who practices in criminal defense and assists lawyers and judges with disciplinary and legal ethics issues. Opinions expressed are those of the author.