{"id":2948,"date":"2018-03-13T16:53:50","date_gmt":"2018-03-13T15:53:50","guid":{"rendered":"http:\/\/michaelgkarnavas.net\/blog\/?p=2948"},"modified":"2019-07-22T12:31:45","modified_gmt":"2019-07-22T10:31:45","slug":"guantanamo-judges-crisis","status":"publish","type":"post","link":"https:\/\/michaelgkarnavas.net\/blog\/2018\/03\/13\/guantanamo-judges-crisis\/","title":{"rendered":"A Guantanamo judge\u2019s crisis of conscience: epiphanous or extravagant?\u00a0\u00a0\u00a0"},"content":{"rendered":"

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I\u2019ll 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)<\/p>
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\u2026<\/p>
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Probably rose-colored glasses. Thought about that last night, too. I took a moment to clean them; they\u2019re not as rose-colored today. And it\u2019s been pretty shaken, and it might be time for me to retire, frankly. That decision I\u2019ll be making over the next week or two I think it might be here, because I\u2019ve never seen anything like it. I\u2019ll just ponder it as we go forward. (p.12374)<\/p>
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Judge Vance Spath in <\/em>United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri, R.M.C. 803 session, 16 February 2018.<\/em><\/span><\/p><\/blockquote><\/p>\n

\"\"<\/a>
Air Force Colonel Vance Spath<\/figcaption><\/figure>\n

Air Force Colonel Vance Spath<\/a>, the presiding judge in United States of America v. Abd Al Rahim Hussayn Muhammad al Nashiri<\/em>, 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?<\/p>\n

For many of us following how the U.S. government has opted to prosecute \u201cunlawful combatants\u201d in its war on terror<\/em>, 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.<\/p>\n

Much of what has been going on in the field by way of extraordinary rendition and torture (euphemistically referred to as \u201cenhanced interrogation techniques\u201d) 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 \u2013 to recount a partial narrative that is half-true, and resultantly, half-false.<\/p>\n

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 \u2013 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 \u2013 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.<\/p>\n

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<\/a> caught on U.S. soil, I suggest reading Michael Dobb\u2019s Saboteurs: The Nazi Raid on America<\/em><\/a> \u2013 <\/em>an informative, balanced, and riveting read. As for Guantanamo, I can think of no better primer than Steven T. Wax\u2019s Kafka Comes to America: Fighting for Justice in the War on Terror, A Public Defender\u2019s Inside Account<\/em><\/a>.\u00a0\u00a0\u00a0 <\/em><\/p>\n

The presumed tripwire to Judge Spath\u2019s supposed crisis of conscience <\/em><\/strong><\/p>\n

As the saying goes, better late than never<\/em>; assuming, of course, there is a genuine appreciation and acknowledgment of just how unfair the proceeding at Guantanamo are \u2013 how an accused is unlikely to receive even a semblance of a fair, objective, and proper trial. But that is not the case here.<\/p>\n

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<\/em> trial in order to get guidance from a higher legal authority (see <\/em>the transcript of the proceedings here<\/a>; 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 \u2013 veteran death-penalty defender Rick Kammen and attorneys Rosa Eliades and Mary Spears \u2013 who walked out of the proceedings in defiance of Judge Spath\u2019s orders.<\/p>\n

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<\/a> 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\u2019s orders were judicial and not military), and second,\u00a0 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.<\/p>\n

I have previously posted on al-Nashiri<\/em> and why it was not just reasonable but necessary for Kammen to withdraw from the case, lest he lend legitimacy to illegitimate proceedings (here<\/a> and here<\/a>). So, rather than re-dwelling on the facts that led to Kammen\u2019s withdrawal, I will focus on what was recently revealed, which, presumably, may have been the tipping point, the tripwire to Judge Spath\u2019s loss of innocence \u2013 the wake-up call to his conscience in the middle of that sleepless night on 15-16 February 2018.<\/p>\n

A 5 March 2018 filing<\/a> from the prosecution signed by U.S. Army Chief Prosecutor, Brigadier General Mark S. Martins<\/a>, disclosed what was being reported all along (albeit with sparse details and some conjecture) \u2013 that microphones (listening devices) were found in the room used for counsel-client communications. We are told that these were an oversight \u2013 so-called \u201clegacy\u201d 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.<\/p>\n

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.<\/p>\n

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<\/a> this account by Prosecutor Martins is \u201coutrageous\u201d and a \u201creally grotesque selective declassification\u201d that helps the U.S. government\u2019s narrative (i.e., half a truth is a half a lie). And yes, I am considering the source: Kammen<\/a> is a lawyer\u2019s lawyer and a highly respected member of the criminal defense bar in the U.S.<\/p>\n

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 \u2013 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.<\/p>\n

Setting aside Prosecutor Martins\u2019 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:<\/p>\n