What the Heck is Happening in Al-Nashiri?: The Ten-Layer Dip at the Heart of the Latest Guantánamo Mess

It’s hard to imagine a better microcosm of everything that’s gone wrong with the Guantánamo military commissions than the current headaches arising out of the prosecution of Abd al-Rahim al-Nashiri—charged for, among other things, his alleged role in the October 2000 bombing of the USS Cole. Among the many ways in which the plight of the al-Nashiri case perfectly illustrates Guantánamo’s frustrations is how hard it is to even understand what the current problems are, or why the prosecution is on a (at least for the moment, indefinite) hold. (And all this is without regard to the substantial prior litigation in al-Nashiri, which, among lots of other things, helped to provoke the legal questions the Supreme Court is currently considering in Dalmazzi v. United States.)

When Bobby Chesney and I talk about al-Nashiri on the National Security Law Podcast, Bobby is fond of referring to the current state of the case as a “seven-layer dip,” because there are a series of interrelated issues that are currently gumming up the works, and one has to walk through (or “eat”) all seven layers to see why. In the post that follows, I aim to do exactly that, with one important exception: As we’ll see, the dip, at least in its current form, has at least ten layers. And more may be coming.

Let’s start at the beginning. There are two major structural problems with al-Nashiri’s case. The first is that we know that he was tortured in CIA custody (and, not irrelevantly, likely under Gina Haspel’s supervision at the Thailand black site). His torture, and its continuing ramifications, is just the largest of the shadows looming over his prosecution. Second, there are serious jurisdictional problems with the charges against al-Nashiri, especially because the Military Commissions Act (MCA) itself only authorizes prosecutions for offenses committed during a “conflict subject to the laws of war.” Although there’s some rhetorical sway to the proposition that we were at war with al Qaeda when the USS Cole was bombed in October 2000, the legal argument to that effect is, charitably, not at all obvious.

To that end, al-Nashiri tried to raise a pre-trial challenge to whether the military commission could even exercise jurisdiction over him. In its August 2016 ruling in “al-Nashiri II,” a divided panel of the D.C. Circuit held that this jurisdictional issue couldn’t be resolved before trial, drawing an artificial (and, in my view, indefensible) distinction between pre-trial challenges to whether the defendant could be tried and whether the offense could be. Even though this claim is a serious (and, if valid, fatal) objection to the military commission’s power to try al-Nashiri, the Court of Appeals held that it shouldn’t be resolved until a post-conviction appeal—opening the door to a potentially unnecessary (capital) trial. More than a little ironically, one of the arguments that the D.C. Circuit rejected was that abstaining in favor of the military commissions was potentially putting off resolution of this issue for a decade. As Judge Griffith wrote for the panel, “We are . . . not prepared at this juncture to forecast that any such delay will occur or be excessive as a matter of law.” In October 2017, the Supreme Court denied certiorari, with no recorded dissents, and so the path was presumably cleared for the commission to proceed.

And that’s where we get to the “dip.” In a nutshell, here are the ten layers, in (rough) order of how they unfolded (there will be a quiz):

  1. The Underlying Interference Claim: Al-Nashiri’s lawyers had good reason to believe, or at least suspect, that the government was monitoring their attorney-client communications, and therefore interfering in their relationship with their client (and their ability to provide effective assistance of counsel). As Carol Rosenberg reported in the Miami Herald on March 7, al-Nashiri’s lawyers found a microphone in the special meeting room in which they met with their client—and were prohibited from discussing or investigating it, including with their client. There’s also reason to suspect that the interference went beyond a solitary microphone—although there’s nothing in the public record to confirm that (yet).
  2. The Ethical Conflict / “Good Cause” to Excuse: Given the (apparent) interference and the lawyers’ inability to investigate it, the next issue became what his lawyers should do about it, and whether they had an ethical obligation to resign from al-Nashiri’s legal team. To help answer this question, al-Nashiri’s lawyers pursued advice from outside ethics experts (more on them shortly), who apparently advised them that, given their inability to discuss the matter with their client or investigate it further, al-Nashiri’s lawyers’ only option was to resign from his defense team. Thus, after receiving permission from the military commissions’ Chief Defense Counsel (Marine Corps Gen. John Baker, who found good cause under Rule 505(d)(2) of the Rules for Military Commissions) on October 11, 2017, all of his civilian lawyers resigned (or, at least purported to do so).
  3. The “Learned Counsel” Requirement: Because al-Nashiri is a capital case, the defendant has a right under the Rules for Military Commissions, the Military Commissions Act, and, almost certainly, the Fifth and Sixth Amendments, to the assistance not just of counsel, but of “learned counsel,” i.e., counsel with meaningful prior experience in capital cases. One of the lawyers who resigned on October 11 was Rick Kammen, al-Nashiri’s “learned counsel.” So even though al-Nashiri still had a military lawyer (Navy Lt. Aleric Piette) after the resignations of his civilian lawyers, he didn’t have a “learned counsel.”
  4. Proceeding Without Learned Counsel: At least initially, the presiding judge—Air Force Colonel Vance Spath—attempted to proceed without al-Nashiri’s civilian lawyers, including his learned counsel, by holding hearings on matters Spath described as not implicating the death penalty. (Spath relied upon language in the Regulation for Trial by Military Commission that he read to suggest that a learned counsel was only required “to the greatest extent practicable.”) This, of course, was a recipe for disaster—or, at least, reversible error, since the language of Rule 506(b) of the Rules for Military Commissions (if not the MCA and the Constitution) seems to mandate “learned counsel” in a capital case. But at least for a few weeks, it’s how things unfolded…
  5. The Power to Dismiss Conflicted Defense Lawyers: While all of this was going on, there was a separate fight over whether General Baker had the authority to authorize the resignation of al-Nashiri’s civilian lawyers without Judge Spath’s approval. Spath took the position that only he could dismiss the lawyers (because whether “good cause” existed was up to him as a “authority competent to detail such counsel” under Rule 505(d)(2)), whereas Baker argued that he had the authority, under both the Rules for Military Commissions and the MCA, to do so. (Without going too far down this rabbit hole, I’m deeply sympathetic to Baker’s interpretation of the relevant text here, since he’s also an “authority competent to detail such counsel,” but the relevant text is ambiguous.) Once Judge Spath ruled that Baker was wrong on both who had the power and the merits, i.e., whether “good cause” existed to justify the lawyers’ resignations (Spath held that the answer was “no”), all hell broke loose.
  6. Judge Spath’s Contempt Power: General Baker refused to testify about the circumstances under which he allowed the three civilian lawyers to resign, arguing that such testimony was protected by privilege under Rule 501(b) of the Military Rules of Evidence. He also refused Judge Spath’s order to rescind the civilian lawyers’ resignations. Judge Spath then held Baker in contempt, and sentenced him to 21 days’ confinement and a fine (both of which were subsequently suspended by the then-Convening Authority, Harvey Rishikof). This, of course, raised two separate questions about whether (a) Spath had any authority over Baker (who is not one of those subject to the jurisdiction of the commissions under the MCA); and (b) Baker was actually guilty of contempt, given the far narrower definition of that offense in the MCA than in the court-martial system (or civilian court). Those issues are presently pending before Judge Lamberth of the D.C. district court in a habeas petition filed by Baker. Spath also made noises about holding the three civilian lawyers (along with civilians not even party to the proceeding, like Hofstra Law Professor Ellen Yaroshefsky, one of the outside ethics experts consulted by the defense lawyers) in contempt, but eventually stood down (albeit only after Kammen obtained relief against Spath in an Indiana federal district court).
  7. Abating the Entire Proceeding: Whatever Spath’s power to hold Baker (and others) in contempt, Baker clearly wasn’t going to do what Spath wanted, which left Spath with no (apparent) other options. So on February 16, 2018, Spath threw up his hands, dropped the mic, and literally walked off the bench—indefinitely “abating” al-Nashiri’s trial until and unless “a superior court tells me to keep going.”
  8. The Government’s Appeal: The government then appealed Spath’s “abatement” order to the Court of Military Commission Review (the CMCR). Specifically, the government asked the CMCR to “hold that the Military Judge is the sole authority to determine if there is good cause shown on the record to warrant excusal of a defense counsel who has formed an attorney-client relationship with an accused and appeared before the Commission; hold that there is no absolute right to representation by learned counsel; reverse the Military Judge’s abatement order as an abuse of his discretion; order that the proceedings be resumed with the presently detailed counsel; and grant whatever other relief the Court deems appropriate.” Al-Nashiri’s one remaining lawyer (Lt. Piette) responded that the CMCR lacked jurisdiction over the appeal because it did not fit within the narrow grounds for interlocutory appeal outlined in the MCA. On March 22, the CMCR issued a strange order requesting additional information—from the government, from Judge Spath, and from General Baker—all with an apparent eye toward resolving layer #5 (who had the final say over the dismissal of counsel), which the CMCR appeared to view as the principal impediment to the case moving forward, and toward lining up some other “learned counsel” to represent al-Nashiri.
  9. Who Can Participate in the Appeal: At about the same time, the CMCR denied the motion by two of al-Nashiri’s (former) civilian lawyers—Rosa Eliades and Mary Spears—to intervene in the government’s interlocutory appeal, holding that they could participate as amici, if they saw fit. (The order also snidely directed Eliades and Spears to “not refer to themselves as Al-Nashiri’s former counsel in their amicus curiae brief as this designation may improperly prejudge this court’s review of a contested issue.”) Eliades and Spears then filed a petition for a writ of mandamus in the D.C. Circuit challenging the CMCR’s denial of their motion to intervene, and seeking a stay of proceedings before the CMCR while the petition is resolved. Yesterday, the D.C. Circuit granted the motion for a stay, and directed both the petitioners and the government to brief a whole lot of stuff—not just whether Eliades and Spears have a right to intervene in the government’s appeal, but also (and here’s where things get interesting) the heart of layer #1, i.e., the underlying claim of intrusion at the bottom of this whole, messy affair. The government is now supposed to file a declaration not only about what actually happened to touch off this whole affair, but about how much of what actually happened was communicated to General Baker and Judge Spath. In other words, although the specific issue before the D.C. Circuit is simply whether Eliades and Spears have a right to participate in the government’s interlocutory appeal, the panel is using that as at least the beginning of an opportunity to create a record with an eye toward eventual resolution of the merits. (Whether the government seeks to challenge the scope of the D.C. Circuit’s order given the narrow relief Eliades and Spears are seeking remains to be seen—and could add yet another layer to this mess.)
  10. Shanghai-ing Learned Counsel: Finally, effective today, the Secretary of Defense has formally recalled Navy Commander Brian Mizer to active duty for no more than two years, presumably with an eye toward being detailed as “learned counsel” to al-Nashiri. It’s unclear whether Mizer has any ground on which to object to his recall (and/or his being involuntarily dragged into this case), or whether he, himself, might also now seek to participate in the government’s interlocutory abatement appeal.

Got it?

To me, here are the big takeaways from this ridiculous post:

  1. We wouldn’t be here without the pervasive secrecy surrounding the commissions. Claims that the government is interfering with the attorney-client relationship aren’t a novelty (hello, Michael Cohen). We just usually have an easy way to resolve the dispute. Here, the problem is the inability of al-Nashiri’s lawyers to meaningfully investigate the alleged interference or consult with their client about it. But for that (and, perhaps, the alleged interference itself), none of this would’ve happened. To illustrate the point, lawyers representing Eliades and Spears before the D.C. Circuit presumably will not even have access to the materials the government files in their case. Welcome to Guantánamo litigation…
  2. Settling who was right between Baker and Spath won’t solve anything. Although Judge Spath (and the government) continue to think that the nub of the dispute is layer #5 (who has the final say over the dismissal of conflicted lawyers), even if Spath is right, that won’t actually resolve layers #1-4. Which leads to…
  3. Someone needs to resolve layers #1-4. The real question remains whether, in fact, the attorneys were justified in resigning (including but not limited to whether the government did in fact interfere in the attorney-client relationship). Whether, once the D.C. Circuit resolves the Eliades/Spears intervention issue, the CMCR gets the first crack, I have to think that we can all agree that this is an issue the D.C. Circuit needs to decide once and for all—and yesterday’s order is a promising development in that direction.
  4. al-Nashiri II looks worse and worse by the day. Because if al-Nashiri is right about his jurisdictional objection to his military commission trial, all of this is a waste of time, and any conviction the government is ultimately able to obtain will be reversed on appeal regardless of any of these 10 layers.
  5. The commissions are a total mess. Last, and not least, this episode ought to drive home why, whatever one’s views about the legality of the Guantánamo military commissions, any argument that they’re still a good idea and just need some marginal reforms to meaningfully move forward is, I fear, hopelessly naive.

Image Credit: Getty / John Moore 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).