Indefensible: Why Guantánamo defense lawyers can’t ethically participate any longer

On Friday, Guantánamo death penalty lawyer Richard Kammen announced in a press release that:

Brig. Gen. John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, disbanded the trial team in the case of United States v. Nashiri. The circumstances surrounding this are highly classified. But Brig. Gen. Baker determined that doing so was necessary because it was no longer ethical for us to proceed.

Although the details are classified, the fundamental reason apparently is related to the fact that the government has listened in on confidential attorney-client conversations. The most notorious example involved microphones in the interview rooms disguised as smoke detectors. Last June, Brig. Gen. Baker wrote a memorandum to the chief prosecutor complaining that confidential client conversations were being monitored. He informed the prosecutor that he had recommended that defense counsel not meet with their clients at Guantánamo. Kammen’s press release indicates that the defense team has learned of new intrusions that make it ethically impossible for them to represent their client. Nashiri is accused of orchestrating the bombing of the U.S.S. Cole, and he faces the death penalty. Kammen explains that prosecution assurances that “the location where we meet with our client” was not compromised turned out to be false. In Nashiri’s pending Supreme Court case, counsel informed the Court of something, redacted from the public record, that “contradicted the prosecution’s assurances.”

Brig. Gen. Baker acted after obtaining an ethics opinion from a nationally recognized ethics expert. She is unnamed in the press release, but is reported by Carol Rosenberg to be Ellen Yaroshefsky, who holds the chair in legal ethics at Hofstra University and directs its ethics center. Yaroshefsky has a special expertise in criminal defense ethics, and she has written previously about the ethics problems facing Guantánamo counsel (here and here).

Kammen was serving as “learned counsel” on the death penalty – a legal requirement in capital cases under federal law – and he estimates that he has put in ten thousand hours since his appointment in 2008.

A further twist is that because the ethical issues involve classified facts, defense counsel cannot explain them to Nashiri himself, nor to the public. According to Richard Kammen, this “placed us in the untenable position of having to advise our client that we could not visit him, but could not tell him why we could not visit him.” I don’t understand this latter assertion. Why couldn’t Kammen say to Nashiri, “We can’t visit you because we do not have confidence that our communications with you are in fact truly private” – which is, after all, exactly what he tells the world at large in the press release? Counsel could add, “We’re not permitted to tell you more than that.”

It isn’t literally true that confidentiality concerns prevent the visits, because under ethics rules (including those of Kammen’s home state of Indiana), clients can give their informed consent to violations of confidentiality (Indiana Rule 1.6(a), which is the same in the ABA’s Model Rules). But of course that would turn client meetings into a travesty: the client-lawyer interviews would consist of an endless stream of lawyer warnings “Don’t talk about that! The walls have ears!” and self-censored client responses. No defense lawyer could competently represent a client under those circumstances, and incompetent representation is itself unethical. (Rule 1.1.)

One other reason all this matters is that federal law requires that in capital cases defense counsel “shall have free access to the accused at all reasonable hours.” Client conversations under such surreal circumstances cannot be described with a straight face as “free access to the accused.” So it isn’t only a matter of legal ethics: it’s a matter of statutory requirements for capital defense counsel as well.

Another ethics rule that matters is the requirement of client communication. (Indiana Rule 1.4, corresponding to ABA Model Rule 1.4.) Counsel must reasonably consult with the client about tactics, keep the client reasonably informed about the case, and “consult with the client about any relevant limitation on the lawyer’s conduct.” Crucially, counsel must “promptly inform the client of any decision or circumstance with respect to which the client’s informed consent” is necessary – like permission to reveal confidential information. It’s hard to see how defense counsel could get Nashiri’s informed consent to waiving confidentiality and the attorney-client privilege without being able to tell him the source of their privacy concerns. For that matter, as legal advisors they would be duty-bound to explain to him what a bad idea waiving confidentiality is.

All of which is to say that if the classified facts are as bad as defense counsel say they are, there is no question that going forward would violate legal ethics. In that case, counsel is required (not merely permitted) to withdraw from the representation. (See Indiana Rule 1.16(a)(1), which, like the other rules I’ve discussed, is the ABA rule as well).

This is bad enough, given how much time Kammen and his associates have put in, and how hard and time-consuming it would be to bring substitute “learned” death penalty counsel up to speed. But it also follows that no new counsel could come on board to replace the counsel who withdrew. They would face the same issues. Under ethics rules, “It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct” (Rule 8.4(a)) – so it would be unethical to join the defense team.

Apparently, only civilian counsel have withdrawn, leaving Nashiri represented by military counsel, U.S. Navy Lt. Alaric Piette. Lt. Piette has stated that while he is competent to handle criminal defense, he is not “learned in the law applicable to capital cases” as §3005 requires – in other words, he cannot take over the role of Kammen and his two associates.

What is puzzling, though, is why Lt. Piette isn’t compelled to withdraw as well, if he faces the same confidentiality concerns as civilian counsel. The relevant ethics rules for the Navy JAG Corps – the rules on competence, communication, confidentiality, and mandatory withdrawal – are no different from the rules governing civilian counsel. A potential difference might arise from one of the basic principles of the Navy JAG rules: “If law and ethics conflict, the law prevails unless an ethical rule is constitutionally based.” It might be thought, then, that a military order to go forward with the representation, coupled with the statutory requirement that military commission defendants have one military defense counsel, would override the ethical rules. That isn’t right, however: these ethics rules are unquestionably constitutionally based – they concern basic due process rights and the right to counsel. Presumably, Brig. Gen. Baker did not withdraw Lt. Piette because the standard, and apparently time-consuming, JAG ethics review process has not run its course. But it is hard to see how the JAG process could reach a different outcome given the rules.

In which case no other military lawyer could take on the defense either, because the military ethics rule prohibiting unethical representations are the same as the rule for civilians. Nashiri would be left with no counsel at all, through no fault on his part or on the part of the Military Commissions Defense Organization. The blame lies squarely with whichever agencies of the intelligence community insist on bugging the confidential attorney-client conversations (or whatever the [REDACTED] thing is they are doing), and prosecutors who provide defense counsel with false assurances that the problems are resolved. And, if no counsel can ethically represent Nashiri, the wheels fall off the case because he must be represented.

Of course, the legal problem could be resolved if “[REDACTED]” could be definitively fixed. So far, however, it appears that the intelligence agencies are far more interested in monitoring what Nashiri says to his lawyers than they are in seeing the trial go forward. This can hardly be their quest for new intelligence: Nashiri has been in custody for fifteen years. More likely they are concerned about what Nashiri and his counsel have to say about his torture in 2003-04. It remains to be seen whether any reliable fix of “[REDACTED]” can be implemented.

Carol Rosenberg, who knows the victims’ families well, comments that “long-frustrated family members of dead Cole sailors are sure to view the resignations as a stunt designed to derail the trial.” Nashiri’s judge, Air Force Col. Vance Spath, will need to hold hearings on the [REDACTED] defense complaints that prompted the ethics withdrawals. No doubt prosecutors will press the “stunt” theory and argue that the threats to confidentiality are not serious enough to warrant withdrawal. However, if the facts are as bad as Brig. Gen. Baker asserts (“it was an easy decision to find good cause given the information presented by Mr. Kammen, Ms. Eliades and Ms. Spears and the facts as I know them”), the legal ethics issues seem clear: counsel had no option except pulling out. One question going forward is why any other defense counsel, civilian or military, would not face the same ethics wall. And a second is whether defense counsel in other Guantánamo cases will find themselves in exactly the same predicament.

 

Image: Gen. Joseph F. Dunford Jr., chairman of the Joint Chiefs of Staff, visits Joint Task Force Guantanamo, Cuba, March 9, 2016 – DoD photo by Navy Petty Officer Dominique Pineiro 

About the Author(s)

David Luban

University Professor in Law and Philosophy at Georgetown