May 21, 2018

The National Law Journal featured a Jenner & Block team representing two civilian lawyers who resigned from serving as counsel to the alleged mastermind of the attack on the United States Navy destroyer USS Cole after finding surveillance equipment in a client meeting room.

The article provides an overview of the background and issues involved and features a Q&A with Partner Matthew S. Hellman, co-chair of the firm’s Appellate and Supreme Court Practice who handled a petition for the lawyers with the US Court of Appeals for the DC Circuit. The article notes that the team includes Partners Todd C. Toral—lead counsel for the civilian lawyers—and Brandon D. Fox, as well as Associate Keisha N. Stanford. Partners Gabriel A. Fuentes and Luke C. Platzer and Associates Elizabeth H. Capel, Kathleen W. Gibbons and Alice S. Kim are also providing support.

As the article highlights, the legal proceedings involving Pentagon-paid civilian lawyers Mary Spears and Rosa Eliades have been complex and involved numerous government branches and court jurisdictions.

In October 2017, the chief defense counsel for military commissions at Guantánamo Bay excused the two as defense counsel for Abd al-Rahim al-Nashiri after they discovered a listening device and other surveillance equipment in and around a client meeting room. The military judge overseeing the case later ordered Ms. Spears and Ms. Eliades multiple times to continue to serve as defense counsel, and even considered having them arrested, but later abated the case to put it on indefinite hold.

The Department of Justice appealed the abatement order to the US Court of Military Commission (CMCR). The Jenner & Block team representing the lawyers filed a motion with the US Court of Appeals for the DC Circuit seeking an order granting them the right to intervene in the CMCR proceedings, which effectively will decide the lawyers’ rights to resign.

In explaining why the Guantanamo lawyers are entitled to intervene in the CMCR proceedings to defend their position, Mr. Hellman said “while the military commissions may be a new bottle, they still have to have the old wine of fair representation and due process. That’s what makes any tribunal legitimate.”

The article notes that the DC Circuit ordered the Department of Justice to submit a declaration “describing any and all intrusions that have occurred, may have occurred, or that the government believes foreseeably could occur” in communications by Ms. Spears and Ms. Eliades with Mr. al-Nashiri or others. The Miami Herald also covered the DC Circuit’s decision in depth.

Five days after the circuit court issued its order, the government reversed itself, notifying the DC Circuit panel that it has asked the CMCR to “promptly” grant intervention in the proceedings by the two lawyers.

Briefing in the CMCR matter is due by the end of May.