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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

GUANTANAMO BAY NAVAL BASE, Cuba -- A Long Island law professor is seeking a federal judge's protection from an order to testify by video feed next week at a USS Cole case hearing. It is the latest test of the reach of the war court created after the Sept. 11 attacks to try non-citizens.

In court Friday, prosecutor Air Force Maj. Michael Pierson called Hofstra law professor Ellen Yaroshefsky's pre-emptive habeas corpus filing at the U.S. District Court in Manhattan part of a "collateral attack" on the military commission system.

While war court prosecutors haven't yet subpoenaed Yaroshefsky and three "rogue counsel" who have defied a judge's order to appear, Pierson said, Congress and the Secretary of Defense have absolutely granted the power to the prosecutors.

At issue is what Air Force Col. Vance Spath, the judge, can do about the resignations of three civilian defense attorneys for Saudi captive Abd al-Rahim al-Nashiri -- death penalty defense lawyer Rick Kammen and Pentagon employees Rosa Eliades and Mary Spears. The defenders quit in October, citing a classified ethical conflict, after getting advice from Yaroshefsky, who had no access to their secrets.

Spath says they didn't have his permission to resign, considers them attorneys in absentia and is considering contempt proceedings over their "shocking and appalling" decision to "abandon" al-Nashiri, the alleged mastermind of the Oct. 12, 2000, USS Cole bombing. He is charged in a death penalty case.

So Spath has ordered Yaroshefsky to war court headquarters in Virginia next week to answer his questions about her eight-page Oct. 5 ethics opinion the lawyers used as a basis for their resignations.

When the judge tried to do the same thing -- order Kammen, Eliades and Spears to appear by video from Virginia -- Kammen got a federal court in Indiana, where he has a law practice, to temporarily suspend enforcement of that order.

Now lawyers for the law professor have similarly filed a pre-emptive habeas corpus petition in federal court against Spath and Secretary of Defense Jim Mattis to prevent prosecutors or the judge from sending U.S. Marshals to force her to war court headquarters.

The thought is not far-fetched. Spath had marshals seize a recalcitrant witness in Massachusetts last year, hold him overnight in a Virginia jail and deliver him to the same place for video testimony.

Lawyers for Yaroshefsky argue in their petition before U.S. District Court Judge Gregory H. Woods in New York that the Guantanamo war court "lacks any authority to detain or seize United States citizens." They said Yaroshefsky may not be allowed to bring her own lawyers into "the secure government facility" for Spath's questioning, and she and does not want to go.

They ask him to quash any potential subpoena to testify at Guantanamo, even virtually.

They argue that Spath overstepped his role by unilaterally calling Yaroshefsky as a witness, essentially usurping the role of prosecution and defense attorneys. And they say a military commission is less a court than "an administrative agency board that operates under tightly constrained powers and may not act outside of the powers explicitly given it by statute."

In court Friday, Spath said he was waiting to hear more about the scope of his power. "If a District Court judge tells me I don't have contempt authority we will pick up and go home," he said.

Pierson told Spath that prosecutors were confident the law was on their side. The prosecutor invoked an earlier precedent in which a civilian federal court chose to not meddle in a military trial in the interest of "comity, respect for the expertise of military judges and judicial economy."

That case, however, involved a classic court-martial. The war court at Guantanamo is a hybrid civilian-military tribunal created by President George W. Bush and reformed by President Barack Obama solely to try non-U.S. citizens for war crimes.

Seventeen U.S. sailors were killed in al-Qaida's suicide bombing of the Cole off Aden, Yemen, after two Yemenis pulled a garbage skiff packed with explosives alongside the ship and detonated it.

Court hearings this week have focused on lead prosecutor Mark Miller's continuing effort to pre-admit evidence, such as debris collected by sailors and federal agents aboard the foundering warship in the aftermath of the bombing.

Al-Nashiri's only lawyer in court all week, Navy Lt. Alaric Piette, consistently refused to question the witnesses or take part in the mini-hearing.

Spath explained in court that he was carefully bifurcating and setting aside pretrial preparation portions that, in his view, did not require the guidance of an American Bar Association-approved lawyer with death penalty experience. The judge called it "nuts and bolts" litigation.

Piette replied the evidence was the "nuts and bolts of a government case that they are trying to use to convict and execute Mr. Nashiri," and that "every aspect of a capital case" requires the guidance of a learned counsel.

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.

(c)2017 Miami Herald

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