Lawyers for Accused USS Cole Mastermind Found Microphones in their Gitmo Meeting Room

A disturbing report in the Miami Herald highlights the farce into which this trial has descended.

A disturbing report in the Miami Herald (“Now we know why defense attorneys quit the USS Cole case. They found a microphone.“):

Lawyers for the alleged USS Cole bombing mastermind quit the capital case after discovering a microphone in their special client meeting room and were denied the opportunity to either talk about or investigate it, the Miami Herald has learned.

The narrative, contained in a 15-page prosecution filing obtained by the Herald, is the first authoritative description of the episode that caused three civilian defense attorneys to resign from the death-penalty case of Abd al Rahim al Nashiri on ethical grounds: Rick Kammen, a seasoned death-penalty defender, and Rosa Eliades and Mary Spears. In fact, the prosecution says the listening device that lawyers discovered in an early August inspection of their special meeting room was a legacy of past interrogations — and, across 50 days of ostensibly confidential attorney-client meetings, was never turned on.

The description, an eight-paragraph, declassified version of something the public was not allowed to know until this week, was contained in a prosecution filing at the U.S. Court of Military Commissions Review signed by the chief prosecutor for military commissions, Army Brig. Gen. Mark Martins, and three appellate lawyers on his staff.

It says that, after the three lawyers quit the case in October, prison workers “removed flooring, walls, and fixtures” in an attorney-client meeting site exclusively used by Nashiri and his lawyers and “confirmed that legacy microphones, which were not connected to any audio listening/recording device nor in an operable condition, were removed.”

The court filing is an attempt by prosecutors in the USS Cole case to get the review panel to order a military judge to resume the case. Nashiri, a Saudi, is charged with engineering al-Qaida’s suicide bombing of the warship off the Yemen post of Aden on Oct. 12, 2000. Seventeen U.S. sailors died in the blast, and the prosecutor is seeking a death sentence. Air Force Col. Vance Spath, the judge, abruptly abated the case Feb. 16, saying he wanted a higher court to clarify his authority as a judge in the Guantánamo war court.

Kammen, reached by the Herald, called the prosecution account “outrageous” and “really grotesque selective declassification” designed to permit “some portion of the truth to seep out, but only in ways that the government feels will help it.”

At the time of their resignations, Kammen said he was only allowed to say that something had occurred, which he could not describe; that he sought discovery from the judge in order to investigate the episode as well as a hearing, and the requests were denied it. The judge’s denial is classified.

“Our concerns were much greater than what they appear to admit was there,” he said. He added, however, that even the portion the prosecution now permits the public to know “demonstrates that either Colonel Spath was lied to by the government or in many of his statements he was lying to the public, the press and the victims in a way that was absolutely shameful and disgraceful — by casting it as fake news.”

Curiously, the prosecution filing is not the appeal itself. It is an answer to a Feb. 28 bid by Nashiri’s lone defense attorney, Navy Lt. Alaric Piette, to block the appeal on jurisdictional grounds.

The prosecution filing casts the judge as having experienced a crisis of conscience over his inability to manage his way out of a situation where defense lawyers — whose resignations he does not recognize — refuse to honor his orders to appear in court. On Nov. 1, Spath ordered the chief defense counsel, Marine Brig. Gen. John Baker, to reinstate the three civilian, Pentagon-paid lawyers to the case, and then found Baker in contempt of court when he refused.

It adopts the judge’s language that the standoff was the result of a “strategy” by the Military Commissions Defense Organization, Baker’s Pentagon’s office of war court defense lawyers, to create a “triumphant stalemate” that “has proven destructive of the rule of law.”

It succeeded, the prosecution brief says, in “so handcuffing and frustrating the military judge that he has indefinitely abated the proceedings below and is contemplating retirement from active military service because of his shaken faith in the law and what it means to be a lawyer.”

One understands why defense attorneys might not take the government at its word that their private conversations with their client were not being listened to on a microphone that could plausibly have been installed for no other purpose. One also understands the frustration of the judge, accustomed to having his orders followed, over guerrilla tactics by civilian lawyers.

Regardless, it is difficult to see this trial as anything other than farce at this point. The need for using an offshore military court to try non-citizens who are not in the military is less than obvious. We’ve somehow managed to try all manner of domestic and foreign terrorists in civil courts.

FILED UNDER: Law and the Courts, National Security, Terrorism, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Stormy Dragon says:

    to guerrilla tactics by civilian lawyers.

    Obeying the law is a guerrilla tactic now?

    The lawyers were, given the situation, required to step down and could have been disbarred had they continued.

  2. James Joyner says:

    @Stormy Dragon: In the judge’s view, at least, the lawyers should have filed their motion and then continued. Presumably, having grounds for appeal down the road if nothing else. But, given the circumstances of this sort of trial—remote location, classified material, etc.—starting over is a major setback that, in the judge’s view, was unwarranted. He ordered them to continue under penalty of contempt. (I’m not a lawyer but am dubious of that order.)

  3. mattb says:

    The need for using an offshore military court to try non-citizens who are not in the military is less than obvious. We’ve somehow managed to try all manner of domestic and foreign terrorists in civil courts.

    100% (I’d also add “domestically incarcerate” to your list). And yet Guantánamo remains open with bi-partisan support*.

    We 15 years past 9/11 and still have yet to come back to our senses. And the majority in government are unwilling to change the path out of either fear of terrorists or fear of looking weak on terrorism.

    [* – Yes, more Democrats oppose it than Republicans, but the reality is that the Dems didn’t give Obama the legislative backing to close it when they were in power. Further, if we’re being honest, a plurality of Dems probably would not have supported closing it if Clinton had been elected.]

  4. Stormy Dragon says:

    @James Joyner:

    Good for the judge, but when the Bar Association is disbarring them for knowingly violating attorney-client privilege, “Judge so and so said it was okay” is not a valid defense.

  5. @mattb:

    There have been dozens of terrorism cases that have proceeded to verdict in the civilian court system, all of them ending in verdicts for the prosecution. Meanwhile, not a single case before the so-called “tribunals” at Gitmo have even gone to trial yet as far as I know. This is an absurd situation.

  6. mattb says:

    @Doug Mataconis:
    Honestly, it’s gone beyond absurd (though if this was a story, Kafka might approve) and into the unconscionable for a first world nation of laws.

    The fact, that the current administration’s rhetoric presents Gitmo as a virtue is even worse.

    Though again, both sides definitely hold significant blame here.

  7. @mattb:

    Yes there is a “both sides” element to this. Nobody in Congress wanted to let Obama follow through with closing Gitmo because none of them wanted the people detained there moved into Federal prisons in their jurisdiction.

  8. There are some circumstances where Courts have authorized monitoring attorney/client communications, but they have been extremely limited. One of the most notable involved the case of an attorney representing one of the men accused in the first attack on the World Trade Center who passed along communications from her client to terrorist elements overseas. She was ultimately charged herself.

  9. gVOR08 says:

    I see the Mighty Right Wing Wurlitzer as the root of many of our problems. Dems may have been reluctant to close Gitmo in the face of popular opposition, but I don’t recall TPM, MSNBC, or even the supposedly liberal NYT, whipping up the mania about it. The lefty bloggers I read were all making jokes about fear of super-genius terrorists with frigging laser beams on their heads.

  10. michael reynolds says:

    I love the b.s. about the mikes not being turned on. The NSA can turn on your cell phone or your Nest camera or your Alexa, but there’s no way that they could listen in on a mike the Army (presumably) installed. Right.

  11. Tyrell says:

    This trial should have been over and done with long ago. Why has this taken so long? What about the US Navy sailors who were killed and injured in this horrible crime?

  12. James Joyner says:

    @michael reynolds: I think it’s at least plausible that the prosecutors are playing by the rules and have in fact not heard the tapes. But, no, I can’t imagine that US intelligence agencies weren’t listening. Hell, I’d be disappointed if they weren’t.

    @Tyrell: It’s a farce. We’ve had him in custody since 2002. Broke all manner of laws in his initial four years of said custody. Now we’re conducting a show trial and it’s not a good show. It’s a national embarrassment that’s spanned three presidential administrations now. And the first two were two-term presidents.

  13. al-Ameda says:

    @Doug Mataconis:

    Yes there is a “both sides” element to this. Nobody in Congress wanted to let Obama follow through with closing Gitmo because none of them wanted the people detained there moved into Federal prisons in their jurisdiction.

    Exactly. Thank you.
    Some of this was a normal iteration of cynical politics (e.g. can’t give Obama a ‘win’) and much of it was political NIMBYism

  14. Tyrell says:

    Who in the world does want them in their back yard? Not me. And a lot of people don’t.