By Joy Bagwell

Earlier this month the Court of Military Commissions Review (CMCR) handed down a decision permitting Abd al-Rahim al-Nashiri’s trial at Guantanamo Bay to move forward, despite concerns about government interference with confidential attorney-client communications. Nashiri faces charges for his alleged role in bombing the USS Cole in 2000. He was captured in 2002 and was tortured on at least four occasions while in CIA custody. He has been at Guantanamo and for twelve years, and could face the death penalty if convicted.

The issue before the CMCR arose when Nashiri’s three lead attorneys, including his “learned counsel”—a death penalty expert statutorily required for military commission capital cases—felt compelled under attorney ethics rules to withdraw from representation, citing their suspicion that the government was eavesdropping on attorney-client privileged conversations. The unclassified record shows that Nashiri’s attorneys found microphones hidden in client meeting rooms, believed the government was screening Nashiri’s mail, and suspected that the government was monitoring computer searches. Since much of the record remains classified, the attorneys were barred from communicating the full scope of their concerns to Nashiri and obtaining his full, informed consent to continue representing him.

Brigadier General John Baker, the Chief Defense Counsel who oversees the military commission defense teams, granted Nashiri’s team permission to withdraw, noting that according to military commission rules such a decision was up to him. A military judge ruled, however, that General Baker had no power to “unilaterally” terminate an attorney-client relationship, pointing to a separate set of military commission “rules of court,” which specify that the military judge is the final arbiter of such decisions. The judge further asserted that the ethical issues raised by Nashiri’s lawyers were not sufficient to justify withdrawal because they did not prove that the government had obtained privileged information. Notably, he also declined to initiate discovery on the issue, which meant that Nashiri’s lawyers were prevented from investigating the government’s conduct.

Both General Baker and Nashiri’s lead attorneys refused to comply with the order reinstating representation, leading the judge to hold General Baker in contempt and order him confined to a trailer in Guantanamo. With no learned counsel remaining to represent Nashiri, the military judge suspended pre-trial proceedings until a superior court could determine how to proceed.

The CMCR ultimately sided with the military judge, finding that he, and not the chief defense counsel, had the final authority to approve withdrawal of counsel. The CMCR also held that, despite the military judge preventing Nashiri’s lawyers from conducting discovery into the government’s alleged spying, they could not withdraw on ethical grounds because they did not prove that the government gained access to privileged conversations. Finally, the CMCR determined that Nashiri’s right to be represented by learned counsel with experience in death penalty cases was not absolute, but existed only so long as the government could “practicably” provide one.

This circus is emblematic of the dysfunctional, ad-hoc military commissions system in Guantanamo. Trying Nashiri and other Guantanamo detainees in the federal court system instead would remove many of these procedural roadblocks. Federal courts would also provide a smoother and more legitimate path to justice, as they have successfully processed over 660 terrorism-related convictions since 9/11. The commissions system, by contrast, has concluded only eight cases—half of which have been fully or partially overturned.

Even if Nashiri is eventually convicted by the military tribunal, the conviction is at risk of being overturned on jurisdictional grounds. The military commissions can only try war crimes, which necessarily must be committed during a time of war. As the 2000 bombing of the USS Cole took place prior to 9/11 and outside the context of war, a higher court may rule—after years of proceedings in Guantanamo—that the military commission lacked jurisdiction to try the case.

In other words, eighteen years after the crime in question our government is spending untold costs to try to secure a conviction that may be thrown out because the military commission never had the power to try the case in the first place.