A one-star Marine general might not be the only attorney for Guantanamo Bay detainees taken into custody for defending the principle of a fair military commissions trial.
Two Pentagon civilians who recently quit defending Guantanamo detainee and accused U.S.S. Cole bomber Abd al-Rahim al-Nashiri, have been ordered to appear at a government facility in Alexandria, Virginia at 9 a.m. on Friday.
There, Air Force Colonel Vance Spath intends to compel the two lawyers, Rosa Eliades and Mary Spears, to continue defending Nashiri in the death-penalty case. But the Daily Beast has learned they intend to resist—deepening the latest crisis for the highly controversial post-9/11 military tribunals.
Spath on Wednesday took the unprecedented step of convicting the Chief of Defense Counsel in the Military Commissions, Marine Brig. Gen. John Baker, for refusing to reinstate Eliades, Spears and their colleague, Rick Kammen, as Nashiri’s lawyers. As first reported by the Miami Herald’s Carol Rosenberg, all three attorneys quit the death penalty case earlier this month after suspecting that the government had been spying on their communications, a violation of longstanding principles of fair trial in civilian courts.
Sources tell The Daily Beast that neither Eliades nor Spears intend to show up at the facility, setting up a dramatic clash that could see them similarly taken into custody. Baker has been sentenced to 21 days’ confinement in his Guantanamo Bay quarters.
Spath on Wednesday issued an order—currently under seal—for Kammen, Eliades and Spears to appear at the northern Virginia government facility, which hosts a secure videoconference to the Guantanamo war court. There, Spath desires for them to continue defending Nashiri in the death-penalty case.
At the Wednesday hearing that ended with Baker’s conviction, Spath said that Kammen, Eliades and Spears “remain attorneys of record in the military commission and are ordered to attend all sessions of this commission, unless properly excused by me or an appropriate federal court.”
Kammen is not a government employee, which protects him from arrest in this circumstance. But both Eliades and Spears are Defense Department civilian employees. Spath, some Pentagon colleagues fear, could order federal marshals to Eliades’ and Spears’ homes to bring them to the facility. If so, and if they refuse to continue defending Nashiri, Spath may order them confined, as he did Baker.
Neither Kammen nor Eliades responded to repeated requests for comment. The Daily Beast was unable to reach Spears.
“There is a possibility that they will be thrown in jail for defending their clients’ rights against government intrusion,” said Alka Pradhan, a Defense Department attorney also assigned to represent Guantanamo detainees.
“From the beginning, the military commissions were meant to ensure quick convictions and the defense has held them off for this long to try to ensure some sort of constitutional adherence. But this is where the real clash begins. The U.S. government is actually beginning to jail the people they have tasked with providing zealous representation of these individuals.”
Baker was convicted after arguing that he as Chief of Defense Counsel, and not Spath, the judge in a military commission, has the right to control the resignation of defense attorneys. Spath disagreed, and convicted Baker without permitting the general to speak in his own defense.
But on Thursday, Baker’s attorneys filed a habeas corpus petition in a D.C. federal court to argue that Spath illegally detained Baker, by exceeding his authority under the Military Commissions Act of 2009.
“As General Baker would have demonstrated to Respondent Spath had he been given the opportunity to be heard, the plain meaning of the governing statute precludes Judge Spath from unilaterally ordering anyone—and particularly a United States citizen—into confinement,” argued attorneys Barry Pollack and Addy Schmitt in court papers filed to Judge Royce Lamberth.
Lamberth held a hearing on late Thursday afternoon and is expected to rule on Baker’s confinement at 2 p.m. Friday. By then, however, Baker’s subordinates on the Guantanamo defense bar, Eliades and Spears, may already be in custody.