The morass around Abd al Rahim al Nashiri’s military trial provides the latest evidence that due process is systematically denied at Guantanamo.
Three of Nashiri’s civilian attorneys quit on October 11 over ethical concerns. They did so with permission from chief defense counsel, Marine Brig. Gen. John Baker. Very little is known about the nature of their concern; as the Miami Herald’s Carol Rosenberg put it “something secret has gone on at the prison to make it impossible for any defense attorney to trust in the confidentiality of privileged attorney-client conversations. And because it’s classified, neither Nashiri nor the public can know precisely what it is.” So we know that Nashiri’s right to privacy when consulting with his attorneys is being violated. Unfortunately, that is just the beginning.
The episode is a test of the power of the judge, Air Force Col. Vance Spath. First, he ordered chief defense counsel Baker confined to his personal quarters near the court after finding him in contempt. Spath’s order was overruled by a Pentagon official. The showdown continued to escalate as all three lawyers won federal orders to prevent US Marshals from forcibly bringing them to teleconference into the court. Rick Kammen, one of the 3 former defense attorneys for the case put it best when he said “the military judge has ordered U.S. citizens to go to what the government claims is a foreign country to provide unethical legal services to keep the façade of justice that is the military commissions running.”
Pretrial hearings continue in the case without the civilian attorneys. This means Nashiri is without a qualified capital attorney, despite the fact that statute mandates such a death-penalty lawyer be on the defense team. The Miami Herald described the scene in court: Nashiri’s remaining attorney, Navy Lt. Alaric Piette “consistently refused to question a witness or take positions, declaring himself not competent to litigate in the absence of a death-penalty qualified defender.”
This preposterous quagmire obviously does not comply with the expectations of due process. Nashiri is being denied his rights at every turn; his right to consult with counsel in private, his right to a fair trial. These trials are little more than a charade and cannot possibly provide true justice.