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Law professor seeks federal court protection against forced video testimony to Guantanamo

Carol Rosenberg, Miami Herald on

Published in News & Features

After each evidence bag was offered, Piette would declare that in the absence of a death penalty defender he was bound to ask no questions and "take no position."

Spath, who has become increasingly frustrated with Piette's refusal to participate, at one point replied: "There is a position and a strategic decision from the defense community."

Spath is the chief trial judge of the Air Force. He observed in court Friday, which was the Veterans Day national holiday, that the law provides skilled death penalty defense lawyers to war-on-terror detainees charged with capital crimes "to the extent practicable" -- unlike in his normal court-martial practice, where airmen charged in death penalty crimes don't get capital counsel.

Kammen and the other attorneys got the ethics opinion from Yaroshefsky, who does not have a security clearance to know the top-secret nature of their concern over a lack of attorney-client privacy. They then submitted their resignations to the chief defense counsel for military commission, Marine Brig. Gen. John Baker, who knows the classified issue and let them quit.

The judge and general disagree on Baker's authority to release them. After the general refused a direct order from Spath to rescind his opinion, the judge declared him in contempt of court and sentenced him to 21 days confinement in his Guantanamo trailer park quarters and to pay a $1,000 fine. A senior Pentagon official suspended the sentence after 48 hours while he reviews it.

In the past two weeks, three different lawyers have hired their own lawyers and gone to three different federal jurisdictions essentially seeking protection from the war court.

Civilian volunteer lawyers filed an unlawful detention petition in Washington, D.C., on behalf of the Marine general confined to his trailer park quarters; resigned attorney Kammen filed his preemptive habeas corpus suit in Indiana, and now Yaroshefsky has turned to New York's Southern District.

In court Friday, another case prosecutor, Army Col. John Wells, announced that the prosecution was arranging for an attorney-client meeting spot in the building housing the judge's chambers and other administration offices at the war court compound called Camp Justice.

Before he quit over the attorney-client privacy problem, Kammen had sought the court's permission to both brief the Saudi about the classified program or information threatening their confidential conversations and to set up an alternative meeting site at Camp Justice, the war court compound miles from the prison.

Spath rejected both requests, saying as judge he didn't have authority to approve the disclosure of classified information to al-Nashiri, and likewise couldn't decide where lawyers meet their captive clients when court wasn't in session.

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