Many Say He’s the Least Qualified Lawyer Ever to Lead a Guantánamo Case. He Agrees.
Navy Lt. Alaric Piette is the lone member of Abd al-Rahim al-Nashiri’s defense team after the other lawyers quit. Even Mr. Piette feels he is not qualified to try the case himself, but believes that leaving his client with no one would be worse.
Lexey Swall for The New York Times
Guantánamo Bay, Cuba — For years, an expert legal team defended one of the most high-profile accused terrorists in a death penalty case at the military tribunals here. But a courtroom dispute involving classified snooping prompted nearly all of the team to abruptly quit this fall, leaving only a 39-year-old former SEAL turned lawyer with just six years’ experience, and none with a capital case.
By many assessments, including his own, the lawyer, Navy Lt. Alaric Piette, is completely unqualified to represent Abd al-Rahim al-Nashiri, a Saudi man accused of orchestrating the bombing of the American destroyer Cole in 2000. Though he was trained to hunt down the most dangerous terrorists in the world, nothing prepared him to defend someone accused of carrying out terrorist acts.
“On another day, I could have easily taken my client out. I know it seems like a contradiction,” Lieutenant Piette said as he stood in the tropical glare outside the dust-colored court building here, which is ringed by razor wire and sniper netting. “But in a lot of ways being a SEAL and being a defense attorney — you’re doing the same thing. You’re defending the Constitution.”
No lawyer with so little experience has ever led a case before the tribunal, and in fact, regulations prohibit it. That the Nashiri case is going forward at all has led many to question whether the tribunals can offer a fair trial, and has cast a harsh light on the already troubled military system, which so far has produced no convictions at trial, despite years of effort.
President Trump has doubled down on Guantánamo, signing an order last week to keep the prison open and vowing in his State of the Union address to send more prisoners to the island. But the tribunals at Guantánamo have repeatedly sputtered, dragging out for more than a decade cases that were originally envisioned to be so speedy that they were set in temporary buildings and tents.
Mr. Nashiri in an undated photo. He faces the death penalty on charges of orchestrating the bombing of the destroyer Cole in 2000.
ABC, via Associated Press
As further evidence of the system’s dysfunction, Defense Secretary Jim Mattis fired the top official overseeing the tribunals, Harvey Rishikof, as well as his chief of staff on Monday. A Pentagon spokesman said the change in leadership, which was first reported by The Miami Herald, would not affect continuing cases.
The Nashiri case began in 2011 and is still churning through pretrial hearings. So are the trials for those accused of being Sept. 11 collaborators. The judge for the Nashiri case has said he would like to begin picking a military jury by December, which puts the schedule of the case in doubt.
In death penalty cases, the military tribunal rules require so-called learned counsel who have tried capital cases before. The team’s former lead counsel had tried 38. Lieutenant Piette has tried none. But the judge in the case has decided to move forward with only the lieutenant — a move that has alarmed a number of legal scholars.
“He doesn’t come close to being qualified,” said Ellen Yaroshefsky, a professor of legal ethics at Hofstra University. “So a death penalty case is basically going forward without a lawyer. If that is what we think passes as a court system, we’re in big trouble.”
One of the people questioning the lieutenant’s decision to stay is the lieutenant himself. His presence in court allows the case to move forward without experienced counsel. “That is clearly a problem, because there is no way I qualify as learned counsel,” he said. “But leaving the client without a lawyer to protect his rights could be even worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.”
The dispute that prompted the resignations of the rest of Lieutenant Piette’s team started this summer when the defense learned that conversations with their client — conversations that are typically strictly confidential — were likely being monitored by the government.
The defense team searched the detention block room at Guantánamo where they met with Mr. Nashiri and spotted something that to them confirmed government monitoring. The original lead defense attorney, Richard Kammen, said in an interview that what he found was classified, so he was barred from disclosing it, even to his client. He objected to the court, but the judge in the case ruled this fall that the client had only limited rights to confidentiality. Mr. Kammen quit the case in protest, saying it was ethically impossible to stay. Two assisting lawyers followed.
“We were gobsmacked,” said Mr. Kammen, who for years has jousted with the military tribunal, making his appraisal of it clear by wearing a kangaroo pin on his court jacket. “Under the law, we had to quit. We had no choice.”
Both the judge and prosecutors were furious at the exodus, which threatened to derail an already slow-moving case. The lead civilian prosecutor, Mark Miller, denounced the defense for what he called “a scorched-earth strategy to obstruct the proceeding by any means, however frivolous, however cynical.”
The judge, Air Force Col. Vance Spath, ordered the defense back to court in October. When they refused, he ordered a Marine general in charge of the defense to force them back. The general also refused, and was confined in a trailer next to the razor wire-ringed court in November for contempt. At the most recent hearings in late January, Judge Spath was still trying to compel the lawyers to appear, so far without success.
In a federal court, appointing a new experienced lawyer would be straightforward, but Guantánamo is no federal court. Few lawyers qualified to take death penalty cases have both the requisite top secret security clearance and the willingness to work with the special military tribunal rules created by Congress in 2009 for Guantánamo, said Navy Cmdr. Brian Mizer, who in the past has represented multiple detainees at the tribunals.
“There is a perception that the tribunals are like tilting at windmills,” he said. “Many lawyers don’t want to go near it.”
Mr. Mizer and others said it could take at least a year for a new lawyer to be appointed and get caught up on the case.
Experienced counsel in a case like Mr. Nashiri’s is critical, Commander Mizer said, because the thicket of charges stemming from a series of attacks is complicated further by evidence gathered through years of torture at C.I.A. black sites.
But after Mr. Kammen left, Judge Spath ruled that learned counsel were required only “to the extent practicable,” and pushed forward with pretrial hearings with just the lieutenant at the helm.
Lieutenant Piette, who grew up in Texas and Wisconsin, said he was not easily swayed by long odds. He enlisted in the Navy right after high school in 1997, inspired by his grandfather, who had been a decorated commando during World War II. Despite limited swimming skills and no experience with weapons, he soon graduated from the notoriously punishing SEAL selection course in a year when nearly 90 percent of the class dropped out.
The U.S.S. Cole after a bomb exploded and killed 17 sailors in the 2000 attack.
U.S. Navy, via Getty Images
He was assigned to a cold-weather warfare team and deployed to Kosovo.
After the U.S.S. Cole and the World Trade Center were attacked, he thought the team would be sent to hunt terrorists. Instead he was deployed again to Eastern Europe. He finished his enlistment without seeing combat. With a young family at home and a growing frustration at the lack of action, he left the Navy at the end of 2003.
For years after, he said, he was dogged by regret. SEAL teams began deploying to Iraq and Afghanistan. Three friends were killed in combat. Men he knew shot Osama bin Laden, he said. He worried he had fumbled his chance to make a difference.
That changed at Georgetown University’s law school, where he started his degree program thinking he would become a prosecutor, but in his final year found the criminal defense clinic.
Raised Roman Catholic, he described representing destitute, often mentally ill clients as the moment he really understood the teachings of Jesus.
“It was the first time since the SEALs I found something really meaningful,” he said. “I was standing between a person and the system. Everything I had learned about training and preparation and perseverance — it clicked.”
After graduating in 2012, he spent five years as a Navy lawyer, working criminal cases at Naval Station Norfolk in Virginia. Last April he was hired to work on the Nashiri case. He had barely started when his whole team quit.
In January, the judge repeatedly fumed at the missing defense team, calling it a strategic tactic intended to undermine the trial.
“Never have I seen such open and notorious rejection of orders from a court,” the judge told the court.
Lieutenant Piette stood before him, respectful but unwavering. As a SEAL member, he said later, he was used to being yelled at.
During hearings over several days in January, the prosecution called witnesses and moved to introduce photos and bags of blast fragments from the attack, which killed 17 sailors. Lieutenant Piette sat silently, spinning his pen in seeming frustration, but passed up dozens of chances to object and cross-examine.
He felt staying nearly silent was the only effective strategy for his client, he said. Over the course of two days, the judge asked 37 times for the defense to comment on the admission of evidence. Each time the lieutenant stood and responded, “Defense takes no position other than to object to these proceedings continuing without learned counsel.”
Though he wanted to argue at length, challenging the very idea that evidence could be admitted without a jury present, he said he knew it would be unethical to even try, and could sink the case. He hoped his refusal to participate would preserve an issue for appeal. Whether it will upend the trial or be a mere footnote in the tribunals will likely not be known for years.
The prosecution declined requests for an interview, but in court, an Air Force major on the team denounced Lieutenant Piette’s objections, calling them “shameless, disingenuous and conceited.”
The same day, though, Abbe Smith, a law professor at Georgetown who taught Lieutenant Piette criminal defense, put his photo up in her ethics class as an example of a “courageous and ethical representation.”
“He’s pretty gutsy. This legal train is in motion and he steps out in front to protect his client,” she said in an interview. “I don’t know that all lawyers would do that.”
Mr. Kammen said discussions with Lieutenant Piette about staying were “complicated” and he was not convinced his most junior lawyer did the right thing.
“If we are obligated to withdraw, isn’t he?” Mr. Kammen said. “He’s a fine lawyer, but this is way beyond what he can do.”
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So many bad things have come out of the Eternal Middle East War TM that it is hard to identify the worst. But among the candidates is surely the parody of "rule of law" that is Guantánamo.
TRMS discussed this and other 'events' concerning the judicial procedures at Guantanamo a couple of months ago.
Anybody that believes in a free democratic republic should be ashamed that Guantanamo exists. It would not be out of the realm to prosecute those who made Guantanamo a reality. Constitutionally, Guantanamo is an American anathema.
Guantanamo wasn't set up for "Citizens" of the U.S.A..
Why is it that Liberals KEEP trying to apply THIS countries rules "Designated SPECIFICALLY" for Actual "Legal" CITIZENS, to guys like this.
You will TRY to "assimilate" !
Even Picard broke free of nonsense like that.
It isn't "Bater". Maybe you meant "Baiter", Unless that's your try at the #3 definition version in the "Urban Dictionary" ?
As far as my comment goes...do you have a truthful rebuttal ?
This is the standard of all free western democracies.
The Nuremberg Trials after WW2 of which Nazi war criminals were held to account were set up by the British, French, American and Russian militaries but conducted under the rule of civilian authority. The reason for this should be obvious.
That is exactly what makes it so abhorrent. The Constitution and the Bill of Rights are supposed to apply to all who are within the authority of the United States, regardless of their citizenship. the creation of a judicial system outside any Constitutional safeguards is... unAmerican.
The "Creation of War" is actually what is abhorrent. Guantanamo doesn't even rank close to that fact.
Tell the Jihadi Nutz to stop, and there won't be a need for a Guantanamo. Until they stop, I say build more Guantanamo's. Everything can be taken down and sold later.
Where is that written in the Constitution?
... never mind...
Umm…. the First, Fourth, Fifth and Fourteenth Amendments!
Not applicable. Especially the 14th Amendment. Prisoners at Gitmo are NOT US citizens (born or naturalized).
The 4th doesn't apply if you are on a US military installation.
The problem, as I see it, is the mix of Military rule, while trying to apply civilian rules. The Military's job, when you get down to brass tacks is to kill the enemy and to keep killing the enemy until the enemy no longer has thw will or the ability to continue the fight. Trying to adapt the military legal apparatus to civilian rules is an exercise in frustration at best. The UCMJ doesn't really apply to civilians, the fact that these combatants don't bother following or caring about the Geneva Conventions, but want them applied to themselves when captured and a government, that has struggled for 3 presidencies to figure out the right answer.
I think the right answer may be to move these folks to a seperate prison where they have no contact with outside inmates and turn the legal procedures over to civilians, who are better qualified to conduct these court cases.
I agree in part but it's a kangaroo court precisely because the Bush regime deliberately ignored both the Geneva Conventions and the Convention Against Torture, resulting in many defendants who are untriable in federal court because the "evidence" against them was derived under torture and is thus inadmissible.
Note that whether these prisoners (or the groups they might represent) are signatories to Geneva or the CAT is irrelevant. What matters is that the US is a signatory.
What Bush should have done was try all of these prisoners in federal court and not torture or otherwise abuse them, like Obama did so successfully with terrorism suspects. But Bush wanted to militarize and politicize an issue which really should have remained a criminal matter and he wanted to remove the issue from the oversight of the courts and the constitution. That's why our gulag is where it is. Fortunately Bush was wrong in virtually all the legal aspects of this issue, but the result is an ongoing problem and a permanent stain on the reputation of the US. And now we have a President who wants to make the US and its gulag even more like Russia, and we have 41 men who we're unwilling to try in federal court because they might be found not guilty.
It appears that the US invaded Iraq and Afghanistan without imagining that any prisoners would be taken. In any case, no process was defined for "what to do with prisoners". That's unthinkable... but hey! Wolfowitz!
So US forces swept up men in the invaded countries (duh!!!), and then did not know what to do with them. Once they had been held for a long time, it was assumed that if they hadn't been militants before their capture, they surely had been converted since... and therefore could not be released.
Kafka would be proud!
Worse than that....the US offered a $5K bounty for Taliban and Al Qaeda members, so the vast majority of persons imprisoned at Gitmo had no known provenance and no case files, which also makes them untriable. It's how the US came to acquire, torture and murder a number of completely innocent civilians, like the taxi driver named Dilawar whom US soldiers tortured to death.
Note that as of August 2015 only 3 of 116 prisoners at Gitmo had actually been captured by US forces.....all the others were sold to the US for a bounty.
Possibly the worst aspect of all this is that it is in part due to the Bush Administration's determination to not use the term "prisoners of war"... for reasons that are both arcane and futile.
Someone captured in combat is a "prisoner of war". (Not, of course, anyone sold for a reward...
)
A "prisoner of war" may be held until the end of the war. Since the war is still ongoing, any prisoners taken in combat could still be held, without trial, in perfect legality. All that was needed was to identify the enemy in the war (al Qaeda, Taliban, whoever...) and have a credible process for separating combatants from bystanders.
But why do it simply and legally, when it can be done illegally and complicatedly?
Does anyone remember the name of Bush's first "Viceroy", before Wolfowitz?
Here's a good NY Law School article about the bounties and the fact that most of the original prisoners were innocent civilians.
I think 5 of the remaining 41 prisoners were cleared for release some time ago but have not been on the orders of Kafka.
Kangaroo court and show trial......two things that pop up in my mind when I hear about this. This man has been in custody since 2002 with charges finally being brought 6 years later, only to be dropped less than a year later and picked up again 2 more years later. Here's an idea why don't they claim him guilty now, then hand him over to Yemen who has already sentenced him to death in the Cole bombing.....because the way it's going this is making our justice system look like a hypocritical joke!
I feel for Col Spath but he seems like he needs a medical time out........
It's interesting how many of the civilian and JAG attorneys (both defense and prosecution) have quit in disgust, including almost all the people who at one time led the prosecution.
Mattis fired Rishikoff & Brown on Monday, ostensibly for their parts in this court case.
Thanks for the link - I hadn't heard that. It sounds like Trump isn't getting the court outcomes he wants.....even from his own personal kangaroo court. LOL.
Spath, an AF O-6, held Baker, a USMC O-7, in contempt of court and would not let him speak in his own defense, then sentenced him to 21 days in quarters.
Suffice it to say the system is broken.......
Our system IS a joke. Now back to the subject, this guy ISN'T part of the US Civil or Criminal justice system. He is a POW and will face trial via the military.
No, he is not a POW. The Bush Administration refused to use that term. Instead, they invented "enemy combatant". POWs cannot be tried. They are detained for the duration of the war. "Enemy combatant" being a term that didn't exist in international law, the Bush Administration imagined that they could do with them as they pleased.
Nothing went as they imagined. So now the US is holding prisoners without charge, and no prospect of resolution.
Tell that to everybody who was in Iraq and Afghanistan during his time as President. POW is what they were referred to and that is how they were treated then and have been since.
Yeah, ummm no. Enemy combatant has been used LONG before Bush took office.
You should read FM 27-10 . And yes, that is the most current version being used by the US Army. It's been in existence since WWII and is still in use today.
... never mind...
Figured
So which one is he? A POW or an enemy combatant?
Read the link I provided and you'll know.