November 05, 2018

The ABA Journal published a feature on the military trial of the alleged mastermind of the attack on the United States Navy destroyer USS Cole.

Jenner & Block Partner Todd C. Toral leads a team representing two civilian lawyers who resigned on ethical grounds from serving as trial counsel to the defendant, Abd al-Rahim Hussein Muhammad al-Nashiri, after discovering various intrusions into the attorney-client privilege, including finding surveillance equipment in a client meeting room.

As the article highlights, the legal proceedings involving Pentagon-paid civilian defense counsel 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, Marine Corps General John Baker, excused the two as defense counsel. The military judge overseeing the case, Air Force Colonel Vance Spath, disagreed with that decision, eventually confining General Baker to quarters and ordering Ms. Spears and Ms. Eliades to continue to serve as defense counsel.  He even considered issuing warrants for body attachment to have Ms. Spears and Ms. Eliades arrested by the US Marshals Service in Illinois and Virginia. After Judge Spath ordered last-minute subpoenas for the civilian lawyers to appear in court, the Jenner & Block team succeeded in causing him to order the Department of Justice to issue new subpoenas, and also filed motions arguing that General Baker, as chief defense counsel, had the proper authority to dismiss the civilian lawyers from further service.

“Certainly from our perspective, notwithstanding having entered into a briefing schedule on the merits, there wasn’t a serious interest on the part of Judge Spath of actually grappling with the merits of the underlying argument,” Mr. Toral states in the article about the firm’s efforts to confirm General Baker’s dismissal of Ms. Spears and Ms. Eliades.

The article outlines how Judge Spath later abated the proceedings, prompting the DOJ to appeal the abatement order to the US Court of Military Commissions Review (CMCR).  The Jenner & Block team filed at the CMCR a motion to intervene, which the CMCR denied without serious analysis.  Thereafter, the team filed a mandamus petition with the US Court of Appeals for the DC Circuit challenging that order.  The DC Circuit responded by ordering, among other things, that the DOJ 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. Five days after the DC Circuit issued its order, the DOJ reversed itself, notifying the DC Circuit panel that it had asked the CMCR to “promptly” grant intervention in the proceedings by the two lawyers.  The matter continues to be hotly litigated; the Jenner & Block team anticipates being back in front of the DC Circuit on further mandamus proceedings in the coming days. 

In addition to Mr. Toral, the Jenner & Block team representing the civilian defense lawyers includes Brandon D. Fox, Matthew S. Hellman, as well as Associate Keisha N. Stanford. Partners Gabriel A. Fuentes and Luke C. Platzer, Associates Kathleen W. Gibbons and Alice S. Kim and Law Clerk Eric Lamm have also provided critical support.