Secret Surveillance and the Legacy of Torture Have Paralyzed the USS Cole Bombing Trial at Guantánamo

Last month, a judge at Guantánamo Bay suspended indefinitely the trial of Abd al-Rahim al-Nashiri, paralyzing one of the most high-profile cases to go before the island prison’s military commissions system. The February 16 decision ended a monthslong standoff with defense lawyers who claimed that they could not do their work for fear of government surveillance. 

Nashiri’s story now spans four consecutive presidencies. The 53-year-old Saudi citizen faces the death penalty for his alleged role in the bombing of the USS Cole in October 2000, in which 17 U.S. sailors died. The audacious strike against the billion-dollar destroyer was the last of Al Qaeda’s escalating actions against U.S. targets before the September 11 attacks. More than 17 years later, the bombing and its alleged mastermind barely register in public memory.

The pretrial proceedings in Nashiri’s case have plodded onward in obscurity, with the trial finally set to begin this year, but the abrupt cessation has once again raised questions about the legitimacy of the military commissions. An outsized legal drama on the face of it, the collapse of the Nashiri trial offers a headfirst dive into the murky world of justice at Guantánamo, governed more by public apathy and secrecy than the rule of law.

Nashiri’s entire civilian defense team resigned last October, citing an irresolvable ethical conflict: They did not believe that they could meet with their client and work on the case without being spied on by U.S. government agencies. Because of the byzantine rules governing classified materials at Guantánamo, the lawyers still can’t explain exactly why they believe this to be the case to the public or to their client.

“I don’t think the commissions have much legitimacy, but if the truth of these circumstances were to become known, what little is left of that legitimacy would evaporate.”

The lawyers who resigned included Nashiri’s death penalty lawyer (“learned counsel” in legal parlance), Richard Kammen, a veteran capital defense attorney who has led the team since 2008, and two other civilian lawyers, Rosa Eliades and Mary Spears, who joined in recent years. While numerous lawyers who have rotated in and out of the legal teams at Guantánamo have criticized the system, no team has resigned with such defiance – or such consequence. It has led to a crisis of authority, with Guantánamo’s legal defenders at loggerheads with a military judge. At times, the two sides seemed to be operating in different universes.

“The government is trying to hide what happened,” Kammen told The Intercept. “They do no want the public to know what is happening down there. I don’t think the commissions have much legitimacy, but if the truth of these circumstances were to become known, what little is left of that legitimacy would evaporate.”

A screen shot of Marine Brig. Gen. John Baker at an Ad Hoc Committee to Review the Criminal Justice Act in Philadelphia on April 11, 2016.

The controversy heated up in June 2017, when Marine Brig. Gen. John Baker, who supervises all of the defense teams at Guantánamo, sent a memo warning that he could no longer assure defense attorneys of privileged conversations with their clients anywhere at the naval base. The inmates at Guantánamo are forbidden personal visitors, and their every communication is censored and monitored; conversations with lawyers were, in theory, the only private link they had to the outside world.

Baker issued the warning only six months after a judge’s explicit prohibition on “intrusive monitoring,” which came at the end of 2016 after years of government intrusions and surveillance in Nashiri’s and other commissions’ proceedings. These included meeting rooms bugged with microphones hidden in smoke detectors and an FBI attempt to turn a defense lawyer into an informant. Baker’s memo admitted his “loss of confidence” that the ban was being observed.

Though government prosecutors told the court that the issue did not apply to Nashiri and his lawyers’ meeting spaces, Kammen’s team said that they subsequently discovered information specific to Nashiri that “unambiguously contradicted” this assurance. The exact information, like much else at Guantánamo, remains classified, but Kammen described it to The Intercept as a “metastasis” of the ongoing interference. (Eliades and Spears declined to be interviewed.)

The inability to guarantee confidential conversations with their client presented Nashiri’s lawyers with a critical ethical and professional quandary. Attorney-client privilege is the “essence of the legal system,” Ellen Yaroshefsky, a professor of legal ethics at Hofstra University, who has advised the defense team as an independent consultant, told The Intercept. “If you can’t give someone the assurance that everything they tell you is confidential, why would they tell you anything?”

Air Force Col. Vance Spath has called the defense claims of an ethical breach “fake news.”

However, the judge who has presided over the court at Guantánamo since 2014, Air Force Col. Vance Spath, has called the defense claims of an ethical breach “fake news,” and has accused the defense of playing legal games to undermine the legitimacy of the commissions. Though Spath’s rulings on the matter remain classified, according to Nashiri’s attorneys, Spath concluded that Nashiri’s right to confidentiality means only that his attorney-client conversations won’t be used as evidence against him in court – not that they won’t be monitored at all.

Kammen and his team pursued several avenues to resolve the issue, including petitioning to tell Nashiri the exact nature of the intrusion and obtain further information. Spath denied them all. The lawyers provided what unclassified details they could, including a nine-page history of government interference and intrusion, to Yaroshefsky, who concluded accordingly that they had to resign.

Kammen, Eliades, and Spears submitted their resignations to Baker in October, who accepted and released them from the case. Nashiri’s remaining lawyer is Lt. Alaric Piette, a former Navy Seal who graduated law school in 2012.

Civilian attorney Richard Kammen speaks during a press conference January 18, 2012, following a commission hearing against Saudi-born Abd al-Rahim al-Nashiri, the main suspect in the USS Cole bombing.

The resignations triggered a rippling crisis of authority that has now derailed the entire case.

Spath rejected Baker’s decision, holding that only he can dismiss counsel from the case. Considering the three lawyers’ resignations “null and void,” Spath has continually recalled them back to the war court, orders they have resisted. He held Baker – a Marine Corps general – in contempt and sentenced him to 21 days of confinement at Guantánamo, though in the end, another Pentagon official ordered him released after a few days.

The Pentagon’s Military Commissions Convening Authority simultaneously entertained proposals for a new “clean facility” for attorney-client meetings to try to assuage the lawyers’ concerns – but the specs for the facility include “control and listening rooms.” (The Pentagon declined to comment on the allegations of intrusion, citing ongoing litigation.)

Kammen described the options Spath gave him as “either come to GTMO and resume unethical representation or go to jail. Given the positions he took, I continued to feel that I had no choice but to continue to resist.”

Spath next hauled in Yaroshefsky to testify about her opinion. During a bizarre hearing in November, Spath continually posed hypotheticals to Yaroshefsky, questioning how her opinion would change if the underlying facts of the case differed. “I found it really troubling,” Yaroshefsky told The Intercept. “The entire idea that they would subpoena an ethicist and just basically say, ‘Well if the facts were different, would your opinion be different?’ – which is all they did – there’s no reason to subpoena an expert to do that.” She called it “weaponizing legal ethics” and said “it puts a chill upon lawyers seeking ethics advice if the ethicist is going to be challenged to go to a court somewhere or a facility to have to be given a series of hypotheticals.”

“The most unfortunate piece of this is how personal it has obviously become for Col. Spath,” observed Michel Paradis, a Pentagon lawyer appointed to represent Nashiri in federal court. Paridis believes Spath “made a situation that was already touchy but resolvable worse and intractable. There are a number of things he could do to resolve this in a practical, reasoned way, but he seems to have undertaken this vendetta.” (In response to questions for Spath about his decisions, Pentagon spokesperson Cmdr. Sarah Higgins said, “I recommend relying on the trial transcript. … The record must be interpreted on its face.”)

It was unclear how the hearings could proceed without lawyers and especially, how a capital case could continue without a death penalty specialist. The general rule is that when the U.S. government seeks to execute someone, the court’s standards and procedures become more stringent, not less. Yet the hearings resumed in mid-January with the untested Piette sitting at the table with Nashiri. (Piette told the New York Times last month, “There is no way I qualify as learned counsel.”)

Spath returned seemingly emboldened and determined to barrel through the defense’s opposition and ramrod the case to trial. He repeated his accusations that the lawyers’ resignations were simply a stunt, upbraiding Kammen for abandoning his client. While professing sympathy for Piette’s position, he nonetheless advised that he employ “self-help” to become trained as learned counsel, later suggesting that a short course would help a lawyer with no homicide experience to take on one of the most important capital cases in U.S. history.

However, just a month later, at the next hearing, after mulling over arrest warrants for Eliades and Spears, Spath abruptly changed course and shut down the trial for the foreseeable future. He delivered a 30-minute statement on February 16 lambasting the “lawlessness” that had overtaken the proceedings. He voiced frustration with the mixed messages from the government about the alleged intrusion on the defense team’s communications, and urged declassification of more information.

The entire affair, he said, had shaken him. Referencing “rose-colored glasses,” he said, “I took a moment to clean them; they’re not as rose-colored today. … It might be time for me to retire, frankly.”

With that, Spath adjourned the proceedings and said he would not restart them until a superior court ordered him to do so.

U.S. Army Spc. Kristopher Dickinson stands guard at the former military commissions building at the Guantanamo Bay Naval Base, in Cuba, on Sunday, Aug. 22, 2004.

The government has appealed to the military commissions review to overturn Spath’s decision, and Piette has in turn asked that the appeal be dismissed, so it’s unclear if and when the case will restart.

The ethical issues underlying the current fiasco are hardly new to the military commissions at Guantánamo. As early as December 2003, a team of military lawyers was fired for refusing to comply with a system that, among other violations of foundational legal procedure, forbade confidential conversations with detainees. Many lawyers refused to legitimize the early iterations of the commissions, which were quickly challenged and struck down by landmark Supreme Court decisions. Lawyers only entertained the notion of the military tribunals after the Military Commissions Act passed in 2009, which remedied the most “ostentatious excesses” of these tribunals, in Paradis’s words.

However, the 2009 law didn’t remedy the systemic ills of the commissions. A main problem, Paradis explains, is that “you have an entire system based around use of evidence derived from torture.”

He added that “outside agencies” – namely, the CIA, which tortured some of the detainees now on trial, including Nashiri – are primarily concerned about what will be revealed at trial.

“That’s why you have so much interference from outside agencies,” he said. “You don’t have this in an ordinary court system because normally outside agencies don’t have that much interest in the people being charged.”

“When you have a court system that is largely designed to conceal and use evidence derived from torture, you have to write new rules.”

A second problem, he added, “is that it’s just a lot harder to create a court system from scratch, especially if you’re trying to do it on a remote island that creates its own logistical nightmare. Simply going there, doing these things, is physically difficult. When you have a court system that is largely designed to conceal and use evidence derived from torture, you have to write new rules.”

Nashiri’s case is one of the most deeply marked by torture. Captured in mid-October 2002, Nashiri spent at least 1,370 days in CIA custody. He received the worst of the agency’s “enhanced interrogation techniques,” including waterboarding, despite his initial cooperation and the urging of some CIA officers that torture would damage the relationship that they had already built with him. While some of the graphic details are known – including rectal feeding, being kenneled like a dog, and mock executions with a power drill and gun – much remains classified. Nancy Hollander, another civilian attorney who first met with Nashiri in 2008, describes his treatment at the CIA black sites as “experimentation of the worst kind.”

Guantánamo was once nicknamed “America’s Battle Lab,” a testing ground where the government could extract intelligence to wage the war on terror. The military commissions are an equally brazen attempt to create an experimental justice system, free from scrutiny and oversight. As they continue to cover up government crimes at the cost of justice for the victims and survivors of the USS Cole bombing, they should be seen as an experiment built to fail.

Top photo: A detainee is seen going up the stairs at Camp 6 in the U.S. detention center at Guantanamo Bay, Cuba.