Leaving the client without a lawyer to protect his rights could even be worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.
US Navy Lieutenant Alaric Piette
In an earlier post I nominated Marine Brigadier General John Baker, Chief Defense Counsel of the Military Commissions Defense Organization at Guantanamo Bay, for the 2017 Defense Lawyer Profile of Courage. Brig. Gen. Baker risked his military career, his future, his retirement benefits and much more by doing the right thing when lesser defense counsel in his place would have caved in or have deluded themselves into believing that going along to get along was ethically the right thing to do.
Brig. Gen. Baker gave no quarter: he discharged three civilian members of Abd al-Rahim al-Nashiri’s defense team (Richard Kammen, Rosa Eliades and Mary Spears), who were no longer able to ethically represent their client because communications with their client were secretly being monitored by the US government. This left al-Nashiri with just a single military lawyer, former US Navy SEAL, Lieutenant Alaric Piette. By his own admissions Lt. Piette is not learned – qualified by specialized training and experience to defend Guantanamo accused in cases where the US government is seeking the death penalty.
I assumed last December that Lt. Piette would withdraw from the case. But then, a headline in an article in The New York Times caught my attention: Many Say He’s the Least Qualified Lawyer Ever to Lead a Guantanamo Case. He Agrees. So, I read on. To my surprise, Lt. Piette was still in the case; the last man standing in al-Nashiri’s corner. How strange!
Whether Lt. Piette should have stayed in the case (and as it appears, taken over as al-Nashiri’s lead defense counsel) or should have withdrawn from it poses some interesting professional responsibility and ethics issues worth exploring. But first, let’s revisit the background to this saga:
- Al-Nashiri, a Saudi citizen, is accused of masterminding the 2000 bombing of the guided-missile destroyer USS Cole in the port of Aden, Yemen, which killed 17 sailors and wounded 39. He is being tried by a Guantanamo Military Commission – a post-9/11 war crimes trial system for “enemy combatants” in the war on terror.
- Because the US government is seeking the death penalty, al-Nashiri is entitled to a learned Kammen, a veteran death penalty defense counsel was appointed to represent al-Nashiri, assisted by civilian defense counsel, Eliades and Spears, and military counsel, Lt. Piette.
- Last summer, Kammen’s team discovered certain facts (which remain classified) that their conversations with al-Nashiri were not confidential. This should not have come as too much of a surprise, outrageous as it is: repeated allegations of intrusions by the US government at Guantanamo compromising counsel-client confidentiality, such as monitoring the privileged mail, telephone, and e-mail communication systems and planting listening devices in smoke detectors in the meeting rooms, were reported in the news over several years (see here, here, and here).
- In June 2017, Kammen raised his concerns and the information discovered with Brig. Gen. Baker, who, as the Chief Defense Counsel, appointed Kammen.
- On 14 June 2017, Brig. Gen. Baker issued a memorandum to all Guantanamo defense teams, declaring a “loss of confidence” in the integrity of “all potential attorney-client meeting locations at [Guantanamo Bay],” and recommending to all defense teams “not [to] conduct any attorney-client meetings at Guantanamo Bay … until they know with certainty that improper monitoring of such meetings is not occurring.”
- In September-October 2017, Kammen’s defense team discovered more facts showing that the confidentiality of its communications with al-Nashiri was being compromised. However, in a series of classified rulings, the Military Judge and Air Force Colonel Vance Spath dismissed Kammen’s motions seeking intervention and investigation of the confidentiality violations.
- Kammen reached out to a prominent legal ethics expert Professor Ellen Yaroshefsky, Executive Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra University in New York for an ethics opinion. Prof. Yaroshefsky concluded that without an ability to have confidential communications with a client, counsel has no other choice but to withdraw.
- Kammen shared Prof. Yaroshefsky’s ethics opinion with Brig. Gen. Baker and asked that he and the other two civilian defense counsel be discharged from representing al-Nashiri.
- Having reviewed the classified facts on the record, Brig. Gen. Baker found good cause and discharged Kammen, Eliades, and Spears.
- Al-Nashiri was not even entitled to learn why his team withdrew, since Judge Spath’s rulings, according to Kammen: “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.”
- Judge Spath, being of the opinion that only he as the trial judge could discharge defense counsel after the start of the proceedings, found Gen. Baker in contempt for refusing to rescind his decision discharging Kammen, Eliades, and Spears, and his refusal to testify about the defense team’s absence, and sentenced him to 21 days in confinement and a $1,000 fine.
- Kammen, Eliades, and Spears have since repeatedly refused Judge Spath’s order to appear at scheduled hearings via video-conference, maintaining that they have already been excused from al-Nashiri’s case (see here and here).
Against this backdrop Lt. Piette, the least experienced and most unqualified member of al-Nashiri’s defense team, remains in the case.
Audacious, presumptuous, or unethical?
Lt. Piette’s thinking for remaining in the case seems to go something like this: were he to also withdraw for the case, al-Nashiri would be left without legal counsel; but by staying in and not doing anything other than making the record by reminding the judge that he is not qualified to act alone and without learned counsel, he is preserving a fatal error for appeal.
On its face it appears to be a clever, even a courageous move – especially when you have Judge Spath going apoplectic, spewing comments such as “Never have I seen such open and notorious rejection of orders from a court” over what he perceives is contemptuous behavior by Lt. Piette, who sits in the courtroom much like a potted plant, doing nothing other than uttering his mantra-like refrain “Defense takes no position other than to object to these proceedings continuing without learned counsel.”
Some praise Lt. Piette for his courage, such as his criminal procedure professor at Georgetown Law School, Abbe Smith, who also teaches professional ethics. According to Prof. Smith: “He’s pretty gutsy. This legal train is in motion and he steps out in front to protect his client. I don’t know that all lawyers would do that.”
But is this the right thing to do? No. Here is why.
The place to start is not the question of whether Lt. Piette is qualified to be effectively acting as lead counsel. Rather, the starting point must be the reasons for Kammen’s withdrawal, which also prompted the two other counsel assisting him to follow suit.
The basis for the withdrawal goes to one of the most fundamental and sacred obligations counsel has towards their clients: maintaining the confidentiality of all counsel-client communications, and zealously representing them. Setting aside the nefarious conduct of those in the US government who sanctioned the clandestine eavesdropping into the confidential discussions Kammen and the rest of the defense team were having with al-Nashiri, is it possible for Kammen to have a proper working session with al-Nashiri in a detention facility (which is the only place they can meet) if the conversations are being monitored? Can Kammen properly seek information from and dispense advice to al-Nashiri under these circumstances? Of course not. And isn’t it unethical for Kammen to effectively deny al-Nashiri a robust defense by curtailing his legal representation so as not to compromise al-Nashiri – all while keeping al-Nashiri in the dark? Yes.
How perverse. By sheer luck or happenstance, Kammen learned that his working sessions were bugged. But then, due to the classified nature of the abhorrent behavior by the US government, Kammen was forbidden to disclose this information to al-Nashiri. Now play out the inescapable scenarios were Kammen to continue to represent al-Nashiri: either al-Nashiri voluntarily provides self-incriminating or sensitive information to the prosecution (and court) or is prompted by Kammen into doing so by answering questions posed by Kammen that are relevant in preparation of his defense.
Just imagine the ethical ramifications. Counsel entrusted with the heavy responsibility of representing an accused facing the death penalty is aware that his consultations with his client are being monitored, but the client is totally unaware and unsuspecting of this because counsel cannot inform him due to a court order. Counsel effectively becomes the prosecution’s handmaiden and its clandestine conduit through which confidential client information, obtained under the guise of being the client’s zealous advocate, is passed on to the prosecution to the detriment of the client. And all of this aided and abetted by the trial judge.
Kammen and his associates had no option but to withdraw from the case. To have remained in the case would have been to breach their professional and ethical obligations toward al-Nashiri. There is no middle approach available, no compromising option, no win-win scenario where counsel can stay in the case yet allow the prosecution to monitor the counsel-client communications, while also being ordered by the court to keep the client in the dark. Even if al-Nashiri were to be informed, how can he possibly assist in his defense if he cannot communicate with his counsel confidentially? How can Kammen provide advice and receive instructions without compromising al-Nashiri if he is put in a position where he cannot openly, freely, and confidentially discuss the facts of the case?
Now let’s look at Lt. Piette’s reasoning for remaining in the case, especially when the ethical compromises that prompted Kammen and the rest of the defense team to withdraw remain unabated.
Recognizing his professional shortcoming in representing al-Nashiri who is facing the death penalty, Lt. Piette’s reasoning for not withdrawing is that “leaving the client without a lawyer to protect his rights could even be worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.”
Lt. Piette had a choice. And still does. If he did not know what to do (given his lack of experience), he should have taken his cue from Kammen, a highly experienced and well-regarded death-qualified defense counsel, who, by all accounts, is a zealous advocate who would not have abandoned al-Nashiri, his client of seven years, unless it was in the interests of justice. Lt. Piette also had good advice from others who are experts in professional responsibility and ethics, such as Prof. Yaroshefsky.
Judge Spath thinks that it is not necessary to have death-qualified counsel in Guantanamo death penalty cases because he claims it is not a requirement, but an option “to the extent possible.” Though I find Judge Spath’s ruling injudicious and repugnant, it may be upheld. After all, the proceedings at Guantanamo hardly adhere to the standards found and expected in US federal and state courts. If this issue is not reviewable through an interlocutory appeal, this means that al-Nashiri is effectively receiving no qualified legal representation during the trial. And what if Judge Spath’s ruling is found to be correct on appeal? Lt. Piette’s courtroom heroics (or antics) would have been to the utter detriment of his client – al-Nashiri.
By remaining in the case, Lt. Piette serves the prosecution and the court. He lends legitimacy to an illegitimate corrupt process that masquerades itself as a court of law. Lt. Piette cannot carry out his ethical obligations if he cannot properly consult with al-Nashiri without breaching the counsel-client confidentiality. Where is the dilemma for Lt. Piette?
Judge Spath hardly seems interested in ensuring that al-Nashiri receives a fair and impartial trial, which, axiomatically, entails having competent counsel who are unhindered from carrying out their professional and ethical obligations. Rather, his interest seems to be aligned with the prosecution’s – getting on with the charade of a trial resulting in a conviction. Harsh words, but circumstantially, this seems to be the only plausible conclusion that can be drawn from Judge Spath’s rulings and intemperate behavior.
And then there is the issue of Lt. Piette’s decision to remain in a case in which he is unqualified. While this is an ethical issue separate from the one central to this post – whether it is ethical for Lt. Piette to continue representing al-Nashiri considering the prevailing confidentiality issues – it cannot be ignored. Without entering into a deep discussion (though this may perhaps be the topic of a post at some point), briefly, in my mind, this is professionally unsound, and arguably unethical.
But getting back to whether Lt. Piette is “gutsy” for presumably stepping out in front of a legal train that is in motion to protect his client, the answer is a resounding no. While I can empathize with his desire to do the right thing (as all conscientious defense counsel strive to do, often against great odds), I think it is reckless, professionally unsound, and unethical.