Photo by Petty Officer 2nd Class Kilho Park/JTF-Guantanamo Public Affairs.
Any lawyer who specializes in death penalty work expects to face massive and occasionally draining challenges as part of his or her professional life. But few expect to arrive at the center of a stranger-than-fiction firestorm over the legitimacy of an entire court system. That’s the position in which Richard Kammen, name partner of Indianapolis-based Kammen & Moudy, finds himself. Until last fall, Kammen was the longtime lead defense lawyer for Abd al Rahim al Nashiri, a Guantanamo Bay detainee charged with orchestrating the October 2000 bombing of the USS Cole in Yemen. Nashiri’s case is one of two death penalty military commissions in pretrial proceedings at Guantanamo; the other targets the five men accused of planning and supporting the Sept. 11 terrorist attacks. (View Lawdragon’s Guantanamo coverage.)
Kammen and two other civilian lawyers withdrew from the case in October over concerns their meetings with Nashiri may be monitored. Eavesdropping has been a concern in the commission proceedings since 2012, when lawyers in the Sept. 11 case discovered that an apparent smoke detector in an attorney-client meeting room was actually a microphone, though the government claimed it was not in use. The attorney-client meeting space for Nashiri is in a different location in the Guantanamo detention facility. Kammen consulted an ethics expert, Hofstra Law professor Ellen Yaroshefsky, after learning last year of new eavesdropping concerns, many details of which remain classified. Yaroshefsky advised him to withdraw from the case.
“A lawyer is ethically prohibited from communicating with the client, notably about sensitive matters, when that lawyer believes that there is a substantial and ongoing risk that the government can listen to the communication,” she wrote in the opinion.
The chief defense counsel, Marine Brig. Gen. John Baker, approved the request after “careful reflection” of both the classified and unclassified information relevant to Nashiri’s situation. Baker’s decision set off a bizarre series of events, covered in exhaustive detail by The Miami Herald. The judge on the case, Air Force Col. Vance Spath, refused to recognize the withdrawal, believing only he has the power to approve such changes. Spath found Baker in contempt when the general refused to rescind his decision and ordered him confined to his Camp Justice quarters for 21 days. (The Department of Defense official then overseeing the commissions freed Baker after two days but upheld the contempt conviction.)
Kammen and his colleagues, Rosa Eliades and Mary Spears, all civilians paid by the Pentagon to work on the case, refused Spath’s orders to participate in the proceedings by videoconference from Virginia. Kammen filed a habeas petition in Indianapolis federal court seeking to block Spath from holding him in contempt and forcing him to appear for proceedings. U.S. District Judge Tanya Walton granted the request until a full hearing on the dispute, which has yet to occur.
The Military Commissions Act of 2009 requires that all defendants facing the death penalty be represented by “learned counsel” with experience in capital cases. Spath nevertheless moved forward with proceedings without Kammen; Nashiri’s military defense lawyer appeared in court but did not participate, citing the absence of a qualified learned counsel. Eventually, on Feb. 16, an angry Spath abated the proceedings to wait guidance by a higher court. The prosecution is appealing the abatement to the system’s appellate court, the U.S. Court of Military Commission Review. In a recent filing, prosecutors said that the Nashiri meeting room contained “legacy microphones” that were no longer operable – a claim that Kammen does not believe.
Kammen says that leaving the commission was the most difficult decision of a career that has included at least 35 death penalty cases. The 1971 New York University School of Law graduate returned to practice in his hometown of Indianapolis after serving two years in the Army. He got his start practicing with a prominent defense lawyer in the city, Forrest Bowman, while also serving as a public defender in Marion County.
His representation of Nashiri dates to 2008, when the detainee was first charged under the Bush-era Military Commissions Act of 2006. That legislation did not require learned counsel for death penalty defendants but the American Civil Liberties Union and the National Association of Criminal Defense Lawyers launched the “John Adams Project” to fund experienced capital lawyers for the cases. Like the five Sept. 11 defendants, Nashiri spent multiple years at CIA black sites and was subjected to “enhanced interrogation techniques” – what Kammen calls brutal torture – before his arrival at Guantanamo Bay. (President Trump’s nominee to head the CIA, Gina Haspel, reportedly ran a black site where Nashiri was tortured.) James Mitchell, one of the chief architects of the agency’s program, recalled in his book “Enhanced Interrogation” that waterboarding Nashiri was difficult because his slender build complicated “securely strapping him” to the gurney.
Kammen says his client is “profoundly damaged” and that much of his team’s work over the past decade had been attempting to build a constructive attorney-client relationship that the suspected monitoring undermines. He adds that Spath and the prosecution team are wrong to say he “abandoned” his client as a means to thwart the case from ever moving forward. The judge’s unwillingness to hold a hearing on his eavesdropping concerns to get to the bottom of what transpired has tied his hands in an ethical bind, Kammen contends.
Lawdragon: With the habeas petition pending in Indiana federal court, what do you eventually hope to happen with that?
Richard Kammen: Ideally, the federal court decides the merits of whether we should have been excused from the case, and I suppose secondly whether only Gen. Baker had the authority to excuse us rather than Judge Spath. There are some subsidiary claims, including whether the government can force lawyers to perform unethical legal services. Hopefully the U.S. District Court will address the merits of the case and get to the underlying issues – which is what Judge Spath wanted when he abated the proceedings. I think a district court is a better forum for that than the Court of Military Commission Review.
LD: Can you explain why you decided to leave the case when you did? You have been critical of the military commissions for some time, and there have always been these lingering concerns about possible monitoring of attorney-client meeting rooms. I realize some of these facts are classified – but why now?
RK: Judge Spath put us in a position where there really was no other choice. In June of last year, Gen. Baker alerted all of the defense teams by memo that there were possible issues of breaches of confidentiality with our clients. What wasn’t well known outside of the inner circle was that everything pertaining to Gen. Baker’s email to us was classified. Nobody could tell us who classified it, or at what level, but the prosecution was very clear that all of this had to be done in a classified setting. Our feeling was that there must be something there; the government doesn’t classify nothing. And so we filed a number of motions seeking to flush all of this out.
Later in the summer, in a public hearing, the government assured us and the commission that, whatever else was going on, there was nothing untoward pertaining to the Nashiri meeting room. But it’s now public – from the government’s recent filing before the Court of Military Commission Review – that when we were able to do a reasonably comprehensive search of the meeting room, among the things we found were microphones. There are issues other than the microphones that I cannot discuss because they remain classified. But we fully expected that there would be an evidentiary hearing pertaining to this, so we could attempt to answer: What was it, how long it had been there, and who was responsible for it? Instead, Judge Spath denied the hearing, denied any discovery being provided.
LD: That’s when you decided to seek the ethical advice from Prof. Yaroshefsky?
RK: Yes, the situation remained classified so we were unable to tell Nashiri what was going on. We were in a position where we couldn’t have any confidence that our communications with our client were private, where we knew that there were serious questions that we couldn’t discuss with him. That caused us to seek the ethical advice. We just didn’t know what our obligations were. We gave her a very limited explanation because, remember, the details were classified. She looked at what we were able to give her, looked at the rules and precedents, and she concluded that we were obligated to withdraw.
Gen. Baker knew all the classified information. We showed him Prof. Yaroshefsky’s opinion and he took time to independently study it, then he approved our request and excused us from the case. So it wasn’t just, “OK, now we’re done.” It was a process. We didn’t start out deciding to leave the case. We initially started with the notion that there would be a hearing on this and it will all get flushed out, and then we’ll see where we’re at. When there wasn’t a hearing, we were just put in a position where we had no choice.
LD: So if Judge Spath had held an evidentiary hearing, and it had gotten flushed out and sorted through to the point where you were confident conversations would not be monitored, you could still be on the case?
RK: Yes, absolutely.
LD: What do you think your client knows about what has happened?
RK: Remember, I haven’t had any contact with Nashiri since about the end of July. I don’t know. I know they have access to news reports so I assume, by now, one way or the other, he’s aware of what’s been published about the microphones. We sent him a letter, when we withdrew, that basically said we’re withdrawing but we can’t really explain why to you other than we have information that you need, that we’re ethically obligated to provide to you, that you have every right to expect to receive, and yet we’re prohibited from giving it to you. But we really couldn’t explain the details to him. I’d like to believe that he knows that we would not have left the case without good reasons. I think he does know that, but again what the details of his knowledge are, I’m just guessing.
LD: Obviously you had gotten to know him quite a bit, and had invested a lot of time and commitment. How difficult was it to leave the case, and have you ever had to go through anything like that in your career?
RK: No, I’ve never gone through anything like that before. I can only think of one or two other occasions where I withdrew from a case, and never under any circumstances like these. It was really the hardest decision I’ve ever made as a lawyer. I can’t tell you how much I agonized over it before we made the decision, and then after we made the decision. Especially in October, November and January, when Judge Spath was not behaving professionally in the hearings he held when we were not there. It was just brutally hard to be reading about it and dealing with it from a distance.
LD: Can you talk a little bit about who your client is? He must be different from what he was like in 2008, when you first met him, and I’m sure even more so from before his time in CIA custody.
RK: When we first met, he was profoundly, profoundly symptomatic with PTSD. Over the years in my federal capital practice I’ve dealt with a number of people who were symptomatic; that’s not unusual. But Nashiri was sort of in his own universe of symptomatology and so at the beginning we would maybe spend eight hours with him and most of it was dealing with and responding to symptoms. Doing so was a lot of work from a lot of people – myself, other team members, our mitigation specialist, our doctor. By the end we had a much more normal attorney-client relationship. He’s still symptomatic and he’s still profoundly damaged, but he was less symptomatic after all the work everyone did.
It would be hard to leave any client after so many years. But given the fact of how he had changed, how I think we helped, and how he had changed us – that made it more difficult to leave.
LD: What do you mean on that last point – how did he change members of your team?
RK: I’ll just speak for myself. I became aware of what he had been through. You know you read about stuff, you read about waterboarding, other techniques, but you don’t really understand. The government sanitizes the information out there about the CIA program. Once we began to understand what he had been through, and in some respects what he continues to go through in Guantanamo, you couldn’t help but be changed by that. You’d have to have a person with no heart and soul to spend the kind of time with a torture victim that we spent and not be affected by that. He profoundly impacted me when I really began to understand how grotesquely brutal what the CIA did to people was.
LD: Why did you want to be a defense lawyer in the first place – was it in law school or before?
RK: You never really know what causes it. Very early, certainly before I went to college, I had the sense that this is what I want to be doing. My father was a doctor and one of his patients was the man who would later give me my start as a young lawyer, Forrest Bowman, who at that time was involved in a big case in Indianapolis representing one of the defendants. We were talking about it, and my father said, “You know, criminal defense lawyers are kind of looked down upon by other lawyers” – and that was certainly true at the time. And somehow, in my mind, it was just like, “Well, OK, that’s for me then.”
LD: I read in an earlier profile of you that you also represented adult bookstores facing legal problems. What was that about?
RK: In the late 1970s and early ’80s, prosecuting adult bookstores became a big deal in Indiana, and around the country, as well. I was asked to represent one adult bookstore and by the end I was representing probably most of the adult bookstores in Indianapolis, and a lot around the state. So we were trying a lot of obscenity cases throughout Indiana. There were also a lot of licensing and zoning issues involving bookstores. For a long time, probably 10 years or so, a big part of my practice was defending adult bookstores and various First Amendment-protected businesses.
LD: What was your first death penalty case?
RK: The client’s name was Ed Robert Anderson, and his was one of the early death penalty trials in Indiana. In 1977, he was charged with two murders, a couple of robberies, one attempted murder, a kidnapping – he and two other people had gone on a crime spree throughout Indianapolis. People were killed and kidnapped; it was pretty horrific stuff. He was acquitted, found not guilty of both murders, but convicted of all the other charges. We never had to go to a penalty phase. They didn’t have life without parole then so he received a sentence of 100 years or something like that. He’s still in prison.
LD: What led you to make death penalty work such a large part of your practice, instead of focusing on other types of defense work?
RK: They’re interesting cases. You get to know a person’s life and get to understand in some respects how unlucky they have been, and quite honestly how lucky I’ve been. I was good at it, and it was interesting work. I suppose there’s a certain ego in going to other places and being the out-of-town lawyer. Probably the biggest challenge is going to a place like Las Vegas where nobody knows you, except maybe the local lawyers, and having to figure out how the court system works and ingratiate yourself into it in a way that works for the client. There is just a lot of challenges to it that I found appealing.
One of the nice things about death penalty cases, especially at the federal level, is that they’re well resourced, and so you can work with good teams and good experts. That is attractive, to be able to do the work and not have to worry about the money or the resources.
LD: Have you ever just gotten tired of it? As you said about your first case, the crimes were horrific. Does that wear on you after a while?
RK: Yes. I had three or four capital cases in Indiana and then probably didn’t do any for four or five years because I really felt like I needed a break. The federal cases began to percolate in the late 1980s early ‘90s, and I decided, “Well, okay, I’ll do one and see how I feel after that.” I’ve now done about 35 to 40 of them. I was always real conscious and still am that you can do too many, that these do take a toll. There were certainly times where I felt like, “Okay, when I’m done with this maybe I need to take a break for a few months before I get into something else.” The responsibility is stressful, the material is stressful. I suspect all of us who have done a lot of this work, including myself, certainly suffer from secondary PTSD. That has been an occupational price, if you will.
LD: Aside from taking time off, did you develop any other ways to cope or get through it and just kind of make sure that you’re taking care of yourself in addition to handling the case as best as possible?
RK: I’ve been fortunate. I find that the teaching I do is very helpful and a different type of break. Also, at the Trial Lawyers College, we deal a lot with what’s called psychodrama and using psychodrama in cases. That has some therapeutic qualities. In 2000, I went to the Trial Lawyers College for a three-week program to learn that approach. Psychodrama is very emotionally centered and deals with discovering the truth of events through action. Part of the thinking of this technique is that you can’t deal with a client’s stuff until you’ve dealt with your own.
I remember in the middle of the second week of this course I called my wife and said that all I want to be able to do is get through a single day without crying. And her response was, “Who is this?” But really, that played a big part in draining a lot of the stuff that was going on with me, and so that was very, very helpful. Since then, on a much smaller scale I’ve found ways to do that, where you just find a way to exorcize some of the stuff you carry around with you.
LD: For non-experts looking at the Nashiri or other death penalty cases, why is a learned counsel experienced in death penalty cases so necessary? Gen. Baker obviously has a lot of good lawyers at his disposal.
RK: Well, the Military Commissions Act essentially is modeled on federal death penalty law in this respect. The federal government requires that there be a learned counsel at all stages in the federal court system. The MCA, when it was passed in 2009, adopted that because death penalty cases are not just murder cases with a more serious penalty – they are a completely different animal than your typical murder case. They’re different in how to prepare, how to try it if it goes to trial, how to assemble a team, who needs to be on the team. It’s just a hugely different animal, and there are plenty of lawyers who can do murder cases, who when they start doing death penalty cases really mess it up.
Part of the motivation of the government is to put in the right players to ensure that the trial and not the appeal is the main event – if it does go to trial, and if there is a conviction and a death sentence, it is more likely to be affirmed. That has been the history in the federal system.
LD: Have any of your clients ever been executed?
RK: No, none of the clients I’ve represented at trial have even been sentenced to death.
LD: What does it take to succeed in this type of work?
RK: To a certain extent, it takes luck. I mean, there are some great lawyers who have had clients sentenced to death and even executed, so you have to be mindful of the role luck plays in it. I think I’ve been fortunate. I think I’ve been able to assemble good teams, good experts who complemented whatever skills I have and whatever skills the other lawyers have. I found that working hard to develop the relationship with the client is a critical piece of it. And that’s why with the work we did with Nashiri it was so frustrating to leave.
For a lot of cases, you end up telling the client that his best choice is to accept the plea, even to plead to life without the possibility of parole. And when you’re telling a 20- or a 25-year-old kid, “You need to really spend the rest of your life in prison,” he certainly has to trust that you have his best interests at heart. It’s a different skill than going into court, it’s working with clients and their families and helping them see the bigger picture.
Sometimes you have to try the cases, and when you try the cases you have to leave it all there. You have to leave it all in the courtroom. Every one of those cases can break bad and you have to have the feeling, “I did everything I possibly could do, I didn’t take any shortcuts.” I’d like to think that’s been the case with my career.
LD: When Harvey Rishikof, the prior convening authority for the commissions, was fired earlier this year, it was revealed that he was considering plea deal negotiations, and that perhaps that’s why his superiors were displeased with him. Did your team engage with plea discussions with him? And was that your goal for Nashiri – to have some type of life-without-parole deal?
RK: I really don’t think it’s appropriate to discuss any conversations I may or may not have had with Mr. Rishikof. However, in my view there would be no reason for Mr. al-Nashiri to accept a life sentence. The government’s case has serious flaws, huge weaknesses. And really when the prosecution says, as it has, if Nashiri is acquitted he still won’t be released, from his point of view there is no reason to consider a plea at all.
LD: In the 9/11 case, they’ve been discussing having the defense teams do sweeps of the attorney-client meeting space so that the teams have some confidence about not being monitored. Would you be willing to return to your case if a regime was put in place that gave you some level of confidence?
RK: Well, whatever they do would have to be an ongoing process. Again, there was more to what we saw than just the microphones that I can’t discuss because those other issues are classified. But certainly at the time when we were expecting a hearing, we fully expected to be asked, “Well, what would you propose?” In addition to what is done going forward, there were concerns going backwards, too, because the government never claimed until recently that this was “a legacy microphone.” We wanted to know what had be done, by who, for how long, and why – there certainly would have been ways to address those things.
But to be clear: I don’t believe for a second the government’s story that this is a legacy microphone. Common sense tells us that if that was the case back when we discovered this, the prosecution would have said then, “Hey, this is a legacy microphone. We can have the hearing. We can flush it all out. We can put this to rest.” That’s what they did when the devices disguised as smoke detectors were found in 2012. But instead their response was, “Nothing to see here. Oh, and by the way, it’s completely classified.” Because it’s classified, I can’t tell you what is in Judge Spath’s order denying the evidentiary hearing, but I can talk about what’s not in this order – and what’s not in the order is the word ‘legacy” or anything like that.
As for coming back or not coming back, that’s complicated and there are a lot of players involved. I don’t know how everyone would feel, so it’s very speculative – I’m not even sure I could, or others would want me to.
LD: For a layperson looking in on Guantanamo and trying to understand these issues, why does it matter if some branch of the government is listening in to what lawyers and detainees are discussing? If it’s not the prosecution listening to gain some type of trial advantage – if it’s not really related to the case.
RK: From a lawyer’s point of view, you can’t have conversations when you know somebody is listening. That’s the black-letter law. I couldn’t interview a client in the presence of my wife, certainly without the client’s permission, and he’d have to understand that what he said to me would no longer be privileged. She could go out and tell the world and there would be nothing he could do about it.
Also, a starting point is who is listening in and why? I don’t think it was, but if it was JTF [Joint Task Force Guantanamo, which guards the detainees] wanting to know if people were planning a jail break – OK, that’s one explanation that is frivolous but more benign. But if it’s the CIA I don’t think you can separate in Nashiri’s case the CIA from the prosecution, because in many respects it appears that the CIA is calling the shots for the prosecution and is directing the prosecution to take certain positions. The CIA knowing what our discussions were would be very harmful to the defense, especially when those discussions relate to things that our client may have told us about his time at the black sites.
Additionally – and I want to choose my words carefully – I’m not convinced that there’s still not some type of human experimentation going on in Guantanamo being orchestrated by the CIA or somebody else. So depending on who’s listening and what their purposes are, it could be extraordinarily important to know.
Editor’s Note: In addition to the government denying eavesdropping on attorney-client meetings, Joint Task Force Guantanamo has repeatedly stated that it meets the highest standards in providing “safe and humane” detention of law-of-war detainees.