I’ll tell you, it was a sleepless night. The — I laid out kind of what I thought my options were yesterday. I thought about them again last night. I thought about them overnight. I wrote and rewrote what I was going to do. I went to the gym. I thought maybe the treadmill would either calm me down — which it has, of course. Give me more — more reflection. It did. And I went back and looked again, and looked again. (p.12367)
Probably rose-colored glasses. Thought about that last night, too. I took a moment to clean them; they’re not as rose-colored today. And it’s been pretty shaken, and it might be time for me to retire, frankly. That decision I’ll be making over the next week or two I think it might be here, because I’ve never seen anything like it. I’ll just ponder it as we go forward. (p.12374)
Judge Vance Spath in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, R.M.C. 803 session, 16 February 2018.
Air Force Colonel Vance Spath, the presiding judge in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, the Guantanamo USS Cole war crimes trial, has had his faith in the law and what lawyers do shaken so profoundly that he is contemplating resigning from active military duty. Epiphany, moment of clarity, or chicanery disguised as faint claims of a tortured judicial soul?
For many of us following how the U.S. government has opted to prosecute “unlawful combatants” in its war on terror, our confidence in due process, fair trial rights, and the rule of law was shaken when the U.S. government established the pseudo-judicial institution in Guantanamo that masquerades as a war crimes court.
Much of what has been going on in the field by way of extraordinary rendition and torture (euphemistically referred to as “enhanced interrogation techniques”) will never come to light. Much of what has been going on in the Guantanamo proceedings will never come to light. At best, what we can glean is a fragment. Like a broken mirror, pieces are missing, and the image is viewed through the lens of individual pieces selected and effectively marshaled by the U.S. government to convey a desired image – to recount a partial narrative that is half-true, and resultantly, half-false.
History will judge the Guantanamo proceedings (if they can be called proceedings) as dark and sad events in an otherwise relatively bright and robust American legal system – a system from which much can be, and has been, emulated by other states. Whether Guantanamo was necessary and reasonable (and the only viable option) is a topic that has consumed many scholars and practitioners – a topic that is well beyond the scope of this post. For anyone interested, however, I recommend a couple of texts that are exceptionally insightful and worth reading.
Since the Guantanamo model of judicial proceedings was inspired by the Military Commission established by President Franklin D. Roosevelt on 2 July 1942 to prosecute eight German saboteurs caught on U.S. soil, I suggest reading Michael Dobb’s Saboteurs: The Nazi Raid on America – an informative, balanced, and riveting read. As for Guantanamo, I can think of no better primer than Steven T. Wax’s Kafka Comes to America: Fighting for Justice in the War on Terror, A Public Defender’s Inside Account.
The presumed tripwire to Judge Spath’s supposed crisis of conscience
As the saying goes, better late than never; assuming, of course, there is a genuine appreciation and acknowledgment of just how unfair the proceeding at Guantanamo are – how an accused is unlikely to receive even a semblance of a fair, objective, and proper trial. But that is not the case here.
On 16 February 2018 Judge Spath went on a lengthy soliloquy during which he noted that after a sleepless night he was halting the proceedings in the al-Nashiri trial in order to get guidance from a higher legal authority (see the transcript of the proceedings here; his unscripted meandering unmasked a meltdown of sorts). Judge Spath went on about how he was thinking of retiring from the Air Force, presumably out of frustration that his orders were being disregarded. The allusion was primarily directed to the three civilian lawyers – veteran death-penalty defender Rick Kammen and attorneys Rosa Eliades and Mary Spears – who walked out of the proceedings in defiance of Judge Spath’s orders.
In his stream-of-consciousness dribble, Judge Spath bemoaned about the rare exceptions when members of the military are permitted to refuse direct orders (for example, when being asked to indiscriminately kill civilians such as in the My Lai massacre during the Vietnam war). But Judge Spath failed to take note of two critical factors relevant to his proceedings: first, that learned counsel (death-penalty qualified) Kammen and his two associates are civilians and therefore not subject to military orders (though arguably Judge Spath’s orders were judicial and not military), and second, Kammen and his associates abandoned the case because they could not abide by their oath and professional ethics to afford their client, al-Nashiri, a zealous defense to the fullest extent.
I have previously posted on al-Nashiri and why it was not just reasonable but necessary for Kammen to withdraw from the case, lest he lend legitimacy to illegitimate proceedings (here and here). So, rather than re-dwelling on the facts that led to Kammen’s withdrawal, I will focus on what was recently revealed, which, presumably, may have been the tipping point, the tripwire to Judge Spath’s loss of innocence – the wake-up call to his conscience in the middle of that sleepless night on 15-16 February 2018.
A 5 March 2018 filing from the prosecution signed by U.S. Army Chief Prosecutor, Brigadier General Mark S. Martins, disclosed what was being reported all along (albeit with sparse details and some conjecture) – that microphones (listening devices) were found in the room used for counsel-client communications. We are told that these were an oversight – so-called “legacy” microphones that were once in use when the room was used for interrogative and monitoring purposes. Thankfully, as Prosecutor Martins would have us believe, these microphones were non-operational well before Kammen began using the room for consulting with al-Nashiri.
How credible is this explanation? If a similar explanation to such questionable circumstances was given by an accused or his or her defense lawyer it would be instinctively dismissed as incredible – a flight of fancy of a something-to-hide and much-to-gain imaginative mind.
Maybe there is a grain of truth to this explanation. But considering the circumstances and what is known, were this explanation (excuse) measured on a truth-meter, it would be difficult to disagree with Kammen when he claims this account by Prosecutor Martins is “outrageous” and a “really grotesque selective declassification” that helps the U.S. government’s narrative (i.e., half a truth is a half a lie). And yes, I am considering the source: Kammen is a lawyer’s lawyer and a highly respected member of the criminal defense bar in the U.S.
What I find most damning and relevant to our discussion is that Judge Spath not only prevented Kammen from telling his client what was going on, but was also coercing him to perpetuate a fraud – to effectively become a government mole in coaxing him, directly or indirectly, through counsel-client consultations in preparations for trial, to feed privileged information to the prosecution, and by extension, to Judge Spath.
Setting aside Prosecutor Martins’ lame explanation (if you believe it, I have some green cheese from the moon for sale), it defies logic that Judge Spath was not aware of what was happening behind the scenes, that he did not willingly turn a blind eye and a deaf ear to all these illicit shenanigans for the sake of moving the case along to its inevitable conclusion – a guilty verdict. Harsh and presumptuous as this may sound, it seems to be the only plausible explanation based on the known facts:
- Why else muzzle Kammen from informing his client of the reasons for his team’s withdrawal?
- Why insist that the proceedings go on as if nothing had transpired that, at a minimum, creates a perception that the proceedings are not being conducted fairly?
- Why ignore the ethics advisory opinion by leading expert Professor Ellen Yaroshefsky, who concluded that without an ability to have confidential communications with a client, counsel has no other choice but to withdraw?
- Why find Marine Brigadier General John Baker of the Military Commission Defense Organization Office in contempt for exercising what arguably was within his remit, and then impose on him a sentence of incarceration and a hefty fine?
- Why continue the proceedings without learned counsel, claiming that this is not a requirement but “an option to the extent practicable”?
Kammen’s observations on the belated selective transparency are noteworthy:
[It] demonstrates that either Colonel Spath was lied to by the government or in many of [Judge Spath’s] statements he was lying to the public, the press and the victims in a way that was absolutely shameful and disgraceful – by casting it as fake news.
Kammen is being generous in musing that Judge Spath was lied to by the government (Prosecutor Martins and company). He charitably provides plausible deniability in what otherwise appears as a damnable case against Judge Spath. Here are a set of whys that beg explanations:
- Why all the secrecy if these listening devices were non-operational?
- Why not come clean when the issue first came to light?
- Why not allow Kammen to inform his client of the reasons for withdrawal?
- Why not inform – as opposed to misinform – the public?
- Why not hold hearings on this matter – open to the public and in the presence of the client – giving both the government and the defense the opportunity to make a record, before taking such drastic measures as dismissing the concerns of learned counsel Kammen and holding in contempt Brig. Gen. Baker?
- Why the outbursts at Lieutenant Alaric Piette, who valiantly (though, in my opinion, wrongly) has remained in the case, attempting to make a record that holding proceedings without learned counsel in a death-penalty case is inappropriate?
- And why, above all whys, has Judge Spath been so insistent in claiming that the Defense, aided and abetted by Brig. Gen. Baker, have been engaged in a stale-mate strategy to thwart the rule of law?
Disgrace not Conscience
How humanistic would it be to claim that a hardened U.S. Air Force Colonel sitting in judgment of unlawful combatants – to whom the U.S. government’s Guantanamo Military Commission afford but a mere semblance of the fair trial rights that any accused is entitled to enjoy – has come to see the errors of his ways; to be so profoundly affected by this epiphany that he is unable to continue in the same vein as he has been, and therefore must now retreat from the military theater.
Tempting as this romantic notion may be, it is not credible. Judge Spath has no compunction when it comes to running roughshod over the defense lawyers, pressurizing them to abandon their sacred oath and duties to their client in order to serve another cause or client – the U.S. government.
No, this is not a crisis of conscience. It is a crisis of disgrace, of humiliation – though not for the reasons Judge Spath professed when pouring his heart out during the 16 February proceedings. And if you read the prosecution’s submissions, which, incidentally, echo Judge Spath’s sentiments, it is all on account of those recalcitrant, obstreperous, and contemptuous (civilian) defense lawyers that have driven Judge Spath to the brink of retirement from the Air Force. Nothing like using defense lawyers who are aggressively pursuing their client’s interests as a convenient whipping post – as a means of concealing and contriving the truth, and what may be behind certain motives and actions taken by the prosecution (U.S. government) in this case.
Judge Spath is frustrated that his orders are not being carried out. This has obviously disgraced him in the eyes of his peers and the public: a judge who is not in control of his court, of the proceedings, and of the parties.
Months after learned counsel walked away from the case, and after deciding that it was not required to have learned counsel in this death penalty case – even though it is as plain as his nose on his face that the law and proceedings require a death-qualified lawyer – Judge Spath has woken up from his power-drunk slumber to realize that perhaps cooler, if not wiser (and higher), heads should weigh in. Maybe this was not of his own doing. Maybe whispers in the august legal corridors of Guantanamo have reached his ears that he is turning the proceedings into a charade, a parody – as if it (and others like it) were not already seen as such in the eyes of civil libertarians the word over. Maybe he got a wink or nod from his higher-ups that it may be time for him to consider other options. Who knows?
Judge Spath deserves neither sympathy nor understanding. He is neither a profile in courage nor a champion of fair trial rights.
Judge Spath should be losing sleep, as any conscientious judge would in his shoes, but not because he is feeling the heat from not being able to control the proceeding or the defense lawyers, who, in my opinion, are acting well within their code of professional ethics. Judge Spath should be losing sleep because of the way he has been presiding over the proceedings – the actions he has taken that are antithetical to the rights of al-Nashiri and inapposite to the sacred obligations of learned counsel Kammen and his colleagues.
Sadly, lost in all of this is al-Nashiri. Rather than trying to fix blame on the defense lawyers for supposedly engaging in rupture strategies,1 The much celebrated French criminal defense lawyer Jacques Vergès coined the term “défense de rupture” (French for “rupture defense”), a defense in which the accused denies the judge’s or the court’s legitimacy and authority, and which consists principally of political arguments reframing the context of the accused’s actions. Judge Spath should embark on a transparent process to get to the bottom of this sordid mess and adopt measures that would allow al-Nashiri’s defense lawyers to carry on with their professional and ethical obligations in representing al-Nashiri without fear that their communications with him will be compromised. The alternative is simple: Judge Spath should resign, forthwith.
Taking either course of actions will likely yield Judge Spath peace of mind for restful sleep.
|↑1||The much celebrated French criminal defense lawyer Jacques Vergès coined the term “défense de rupture” (French for “rupture defense”), a defense in which the accused denies the judge’s or the court’s legitimacy and authority, and which consists principally of political arguments reframing the context of the accused’s actions.|