The latest episode in the Military Commission’s efforts to try Abd al-Rahim al-Nashiri for the U.S.S. Cole bombing is a dramatic dispute between Air Force Col. Vance Spath, the military judge in al-Nashiri’s case, and civilian defense counsel who are attempting to withdraw from the case for ethical reasons. Brig. Gen. John Baker, chief defense counsel for the Military Commissions Defense Organization (MCDO) found good cause for their withdrawal and approved it; but Judge Spath did not accept the withdrawal, and ordered the lawyers to Guantánamo.

On Oct. 29, Carol Rosenberg reports, the plane left for Guantánamo with Spath and Baker on it, but without the three civilian lawyers. They are “learned counsel” – death penalty experts – legally required for capital cases like al-Nashiri’s. This sets up a possible contempt order against lawyers Richard Kammen, Rosa Eliades, and Mary Spears. As Rosenberg writes:

In response to a question about Spath’s authority to enforce his appearance order, a Pentagon spokesman noted that the judge has forced a witness to testify and can find someone in contempt of court. The contempt option involves a multistep process, including an opportunity to appeal and have a Pentagon official review the finding, and may be punishable by 30 days in a brig or jail and a $1,000 fine.

I posted about the underlying ethics issue here. Although the facts are classified, it seems that the basic problem is persistent eavesdropping by intelligence agencies on confidential and privileged attorney-client conversations. As I explained in that post, going forward under those circumstances would violate multiple ethics rules – rules on confidentiality, competence, communication with clients, and informed consent. These rules are central to defense counsel’s role. They aren’t business rules like those governing lawyer advertising or collecting fees: They go to the heart of the criminal defender’s constitutional obligations under the Fifth and Sixth Amendments. If circumstances in a case don’t allow lawyers to follow those rules, they must withdraw. 

How central are these rules to due process? Imagine a civilian case in which a defendant is sentenced to death even though defense counsel was unable to have privileged and confidential conversations with him. Admittedly, the Supreme Court has made bewildering decisions on ethics issues in criminal cases. Fifteen years ago, the Court upheld a death penalty conviction when the defense counsel had previously represented the murder victim. (In that case, the majority opinion embarrassingly called the ethics rules by the wrong name. The error managed to sneak by all nine justices and their 37 clerks, not an encouraging sign of professional responsibility expertise). But finding a constitutional violation in this one would surely be a no-brainer.

The current dispute, though, is one step removed from the ethics issue. It concerns who must sign off on defense counsel’s withdrawal (or “excusal”), the Chief Defense Counsel or the judge. And the legal problem is that two sets of military commission rules contradict each other on precisely this question. Under the Manual for Military Commissions (M.M.C.):

After an attorney-client relationship has been formed between the accused and detailed defense counsel or associate or assistant defense counsel, an authority competent to detail such counsel may excuse or change such counsel only:

(i) Upon request of the accused or application for withdrawal by such

counsel; or

(ii) For other good cause shown on the record.

(Rule 505(d)(2)(B)). The rule does not add “… and only with the judge’s approval.”

Baker, the chief defense counsel, is the “authority competent to detail such counsel,” so under this rule it is his call whether good cause for withdrawal exists, and he has made that call. He said it was “an easy decision to find good cause,” although a hard decision from the defense point of view.

The legal complication is that under the Military Commissions’ Trial Judiciary Rules of Court, “excusal must be approved by the Military Judge.” Rule 4.2.a. Judge Spath’s order to the lawyers rests on this rule.

Which rule wins? As I read these rules, it seems that the M.M.C. rule prevails. The reason is this: the Trial Judiciary Rules of Court is a bench book written to implement the M.M.C., as authorized by M.M.C. Rule 108:

The Chief Trial Judge for Military Commissions may make rules of court not inconsistent with these rules for the conduct of the military commission’s proceedings. (My italics.)

“These rules” means the rules in the M.M. C. So, if the bench book contradicts the M.M.C., the Chief Judge lacked authority to issue the inconsistent rule. Here, the inconsistency is that the M.M.C. gives the Chief Defense Counsel the power to excuse lawyers who are withdrawing for good cause, while the bench book takes that power away and conditions it on judicial approval – even though the M.M.C. rule says nothing about judicial approval. It follows that although Judge Spath is conscientiously following the bench book rule, the Chief Judge had no legal authority to issue that rule.

This is the kind of rule-mongering only a lawyer can love, but it clearly matters in the current stand-off. But (an impatient reader might ask) is there anything less arcane and legalistic to justify taking the matter out of the judge’s hands? After all, in an ordinary civilian court, when lawyers withdraw from a criminal case for ethical reasons, it’s the judge who signs off.

But in an ordinary civilian criminal case, there is no counterpart to the Chief Defense Counsel assigned to make these calls. And in an ordinary civilian criminal case, counsel would have a private room for client meetings, without government spying. If that weren’t true, a trial judge would approve a request to withdraw in a heartbeat (and then raise holy hell about the spying). No doubt the civilian judge would demand to know why the lawyers think their conversations are being spied on – the judge would want to make sure the lawyers weren’t playing delaying games, and hadn’t become paranoid. But the judge would not fly to Cuba, and order the lawyers to fly to Cuba, before having that conversation. Obviously, nothing about this case resembles an ordinary civilian criminal trial.

The heart of the issue is whether a lawyer can be forced to continue a representation that no U.S. jurisdiction’s ethics rules permit. Hopefully, Judge Spath would agree that the answer is no. But then why not address the issue at Military Commission headquarters in Alexandria, Virginia, not in Cuba?

Image: Getty/John Moore