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A firm team obtained a significant win for two civilian lawyers who resigned from serving as counsel to Abd al-Rahim Hussein Muhammad al-Nashiri, the alleged mastermind of the attack on the United States Navy destroyer USS Cole who is facing a military trial at Guantánamo Bay.
The civilian lawyers resigned after discovering various intrusions into the attorney-client privilege, including finding surveillance equipment in a client meeting room.
On Tuesday, April 16, the US Court of Appeals for the District of Columbia issued a decision vacating all rulings from Air Force Colonel Vance Spath, the now-retired military judge overseeing the case, dating back to 2015 in the trial of Mr. Nashiri. Among those rulings were orders preventing the Pentagon-paid civilian defense lawyers, Mary Spears and Rosa Eliades, from resigning.
In October 2017, the chief defense counsel for Military Commissions at Guantánamo Bay, Marine Corps General John Baker, excused Ms. Spears and Ms. Eliades as counsel for Mr. Nashiri. Judge Spath disagreed with that decision, eventually confining General Baker to quarters and ordering Ms. Spears and Ms. Eliades to continue to serve, threatening them with arrest. Judge Spath eventually abated the case to put it on an indefinite hold.
At issue in the January 2019 arguments before the DC Circuit was General Baker’s authority to dismiss the civilian lawyers. In a related case argued during the same hearing, a defense attorney for Mr. Nashiri urged the DC Circuit to toss all of Judge Spath’s rulings, as the judge was seeking a position with the US Department of Justice as an immigration judge while issuing rulings in the military court case prosecuted by the DOJ.
The Court found that his efforts to be hired by the same agency currently appearing before him in court was “impermissible.”
“Spath’s job application, therefore, cast an intolerable cloud of partiality over his subsequent judicial conduct,” the justices note in the opinion vacating Judge Spath’s orders.
The legal proceedings involving Ms. Spears and Ms. Eliades have been complex and involved numerous government branches and court jurisdictions. Please click here for more information about the background of the case.
Partner Todd C. Toral, who led the firm team handling the case, represented Ms. Spears and Ms. Eliades in the military proceedings at Guantánamo Bay and in the US Court of Military Commission (CMCR). Partner Matthew S. Hellman argued the case in front of the DC Circuit. The Jenner & Block team includes Partners Brandon D. Fox and Keisha N. Stanford and Associates Alice S. Kim and Eric Lamm. Partners Gabriel A. Fuentes and Luke C. Platzer are also providing support. Partners Adam G. Unikowsky and Ishan K. Bhabha and Associates Lauren J. Hartz, Andrew C. Noll and Tassity Johnson assisted with moot arguments. Cheryl Olson provided paralegal support, Tyler Edwards provided docketing support, and Beth Gulden provided administrative assistance.