Lawyer for Saudi captive asks federal judge to stop USS Cole case proceedings

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Lawyer for Saudi captive asks federal judge to stop USS Cole case proceedings
BY CAROL ROSENBERG crosenberg@miamiherald.com - NOVEMBER 01, 2017 9:50 AM
RE: http://www.miamiherald.com/news/nati...182031196.html

GUANTANAMO BAY NAVY BASE, CUBA

A defense lawyer Wednesday asked a federal judge to halt this week’s USS Cole case hearings because of the resignation of the death-penalty qualified defense attorney for the Guantánamo captive awaiting a capital trial.

The brief filed in U.S. District Court in Washington, D.C., argued that Abd al Rahim al Nashiri, the man accused of plotting al-Qaida’s Oct. 12, 2000 bombing of the U.S. Navy warship off Yemen, “will suffer irreparable harm if relief is denied. His capital case will proceed without the assistance of qualified counsel as required by law.”

Nashiri’s military judge, Air Force Col. Vance Spath, scheduled a noon contempt hearing for Wednesday to address the absence of capital defender Rick Kammen and two other civilian lawyers paid by the Pentagon to defend Nashiri. Kammen, Rosa Eliades and Mary Spears resigned last month in protest over, they said, a secret roadblock to ethical representation involving an intrusion of attorney-client privacy at the terror prison.

The chief defense counsel for military commissions, Marine Brig. Gen. John Baker, found “good cause” for their leaving the case, and excused them. Tuesday, Spath ordered Baker to withdraw his opinion. Spath believes only the trial judge has the authority to excuse a counsel of record in a war court case. Baker disagrees, and refused.

Spath also said in court Tuesday that he intended to proceed with pretrial hearings on Thursday, notably witness testimony. He ordered the only defense attorney with a continuing relationship with Nashiri, Navy Lt. Alaric Piette, to participate. The Navy lieutenant declined, arguing the case cannot go forward without a death-penalty defender, called learned counsel.

The law governing military commissions says a defendant is required to have a capital defense attorney. Spath ruled from the bench Tuesday that “learned counsel are not practicable in the near term, if ever, by the actions of General Baker.”

RELATED: Guantánamo’s USS Cole death-penalty case in limbo after key defense lawyer quits

Nashiri’s Pentagon-paid appellate attorney, Michel Paradis, filed the petition with U.S. District Court Judge Royce Lamberth, who is judge of record in Nashiri’s mostly dormant habeas corpus petition. His courthouse, however, is the judicial branch’s keeper of a copy of the so-called Senate Torture Report that investigated the CIA’s post- 9/11 secret prison network.

Paradis argued that postponing this month’s pretrial hearings will cause “minimal disruption.”

“No evidence is imminently likely to disappear or degrade in value. Indeed, this case has already entered its ninth year of pretrial proceedings and [Nashiri] has been in U.S. custody, without any meaningful judicial review, for 15 years,” he wrote.

Seventeen U.S. sailors died in the suicide bombing of the Cole off the port of Aden, Yemen, and dozens more were wounded. Nashiri was captured in 2002 and disappeared into the CIA’s secret prisons known as the Black Sites until his September 2006 transfer to this Navy base in southeast Cuba. He was arraigned in 2011.

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