3511 NW 91 Avenue, Miami, FL 33172 Jan. 4, 2018 To the judges A civilian attorney resigned and defied an Air Force judge's order to come to Guantánamo. A Marine general defied the same judge and was found in contempt of the war court, and sentenced to 21 days confinement. A Navy SEAL turned lawyer with no death-penalty experience found himself the lone defender in a capital terrorism case. During a legal and ethical morass in a U.S. military death-penalty case few in American know exists, the nation had just one place to go to find out what happened: The Miami Herald. From the court to the filings to exclusive interviews, in an episode that captivated the U.S. legal community, correspondent Carol Rosenberg shined a light on the faraway court created after the Sept. 11 called military commissions. Or, as Rosenberg calls it, the war court. She set the stage for the drama with an exclusive report. 1 on the mass resignations of the civilian defense team for the alleged USS Cole bomber. She documented 2 the defiance of the judge's order to appear in court. Then her daily dispatches (aggregated in our USS Cole Trial Guide 3 ) showed the judge finding the Marine in charge of defense teams in contempt of court 4 without permitting the officer an opportunity to speak up. Others would follow, tipped off by her tenacious reporting and relying on transcripts. But note this nugget only a reporter working at the war court compound would know: The general's quarters, where he was confined, were inside a trailer park behind the courthouse. The story's not over but the episodes of October and November 2017 so captivated the attorneys and others who would search for her dispatches at miamiherald.com/guantanamo that Rachel Maddow devoted a 15-minute segment on MSNBC to Rosenberg's stories, declaring her a "national treasure of a reporter." Click here to see the video showcasing Rosenberg's reports. 5 Rosenberg then stepped back to produce must-read profile 6 of the 2012 Georgetown Law graduate, the lone defender at court for Abd al Rahim al Nashiri, the Saudi accused of terrorism whom the CIA has admitted to waterboarding in the spy agency's secret prison network. In the same court session she meticulously reported 7 a behind-the-scenes controversy involving an emerging ban on detainee art that began as a rumor among defense counsel. She hounded the 1 http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article178691836.html http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article181566401.html 3 http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article100104397.html 4 http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article182031196.html 5 http://on.msnbc.com/2xMXFhC 6 http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article184350533.html 2 .11 military for answers, then broke the news that that to this day continues to reverberate in the international human rights and arts community. While others were copying or opining on her story, she pressed the military for and learned that the military was retreating from the original idea of incinerating art,8 a testament to her tenacity. Carol Rosenberg is a nuts and bolts court reporter who works under the most unimaginable circumstances. The court is in a far-off corner of an off-limits island, reachable only if the Pentagon lets you take a ?ight there by showing up at an Air Force Base outside Washington, DC., before dawn days before a military judge gavels open each session. Reporters are consigned to tents in a hierarchy that gives translators and victims townhouse accommodations, in?court civilian attorneys hotel rooms and the judge of?cers quarters. They report under watch by speci?cally tasked military escorts. They must sign ground, $123.9 simply to go there and watch the proceedings, or interview the attorneys. For many hearings, like the three-week session in the showdown that saw a general con?ned to his quarters for contempt of court, she was the 0_nly reporter. Hers was the photo of the general upon his release from two days detention after a senior Pentagon of?cial intervened. Hers was the only independent voicem from the base explaining the issue on national radio. Without her tenacity, the world would know far less about what goes on at Guantanamo. History, and the Supreme Court, have yet to decide the legitimacy of the war court at Guantanamo. _Meantime, Rosenberg writes the ?rst, and at times only, draft for the public to follow. Carol Rosenberg does the hard work required to keep the public informed about the tribunal. It?s not glamorous. It?s not comfortable. It makes her unpopular at times with the people she covers. But it?s very necessary. For her relentless, groundbreaking and diverse coverage, we are proud to submit her work for a Silver Gavel award. Sincerely, ?t -. @142 i Dave Wilson Senior Editor The Miami Herald dwilsonfr?miamiherald.com 7 8 8673 .html 8 ://Www.miamiherald. com/news/nation?world/world/ americas/ guantanamo/ article 1 86 891663 9 10 Published Oct. 13, 2017 Available online at http://hrld.us/2g6V7n6 Guantánamo’s USS Cole deathpenalty case in limbo after key defense lawyer quits The U.S. Navy released this view of damage sustained on the port side of the Arleigh Burke class guided missile destroyer USS Cole after a suspected terrorist bomb exploded during a refueling operation in the port of Aden, Yemen, on Oct. 12, 2000. ASSOCIATED PRESS BY CAROL ROSENBERG crosenberg@miamiherald.com GUANTANAMO BAY NAVY BASE, CUBA In a stunning setback to the trial of the alleged mastermind of the 2000 USS Cole bombing, the case’s entire civilian legal team including its capital defense attorney has quit the case over a secret ethical conflict. The move could freeze progress toward trial in the national security case for the foreseeable future. The USS Cole bombing, which killed 17 U.S. sailors off Yemen two years after al-Qaida’s attacks on two U.S. embassies in Africa, underscored the terror movement’s aspirations on the global stage. The case was on track to be the first death-penalty trial held at this remote U.S. Navy base in the post-Sept. 11 war crimes trial system. Attorney Rick Kammen, who has defended Saudi Abd al Rahim al Nashiri since 2008, was released on from the case by the chief defense counsel for military commissions, Marine Brig. Gen. John Baker. The case can’t proceed without him. Two other defense attorneys, who like Kammen are Pentagon-paid civilians, Rosa Eliades and Mary Spears, also quit with permission from Baker but remain on his staff. listening in on their legal meetings, creating an ethical conflict. It involves classified information so they cannot explain it to the accused terrorist. Or the public. “We have mixed emotions about this,” Kammen said in a statement Friday afternoon. “We are angry about being placed in an ethically untenable position, disappointed in not being able to see the case through, and devastated to leave Mr. Nashiri, whom we genuinely like and who deserves a real chance for justice.” A Pentagon spokesman suggested the Marine general’s finding of “good cause” for their release might not be sufficient. “There is currently no request for excusal before the military judge, who will only authorize excusal upon good cause shown on the record,” said Air Force Maj. Ben Sakrisson. The startling but murky development caps months of classified conflict over a discovery by the defense team that its privileged attorney-client meetings may be monitored by the U.S. government. In June, the general advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo. Defense attorney Rick Kammen sported a kangaroo lapel pin to the court’s national security session on June 14, 2013, at the U.S. Navy base at Guantánamo Bay, Cuba, in a photo approved for release by the U.S. military. Photo by Carol Rosenberg Members of the legal team withdrew on the belief that the government was It also comes as the U.S. Supreme Court is considering whether to hear an appeal brought by Nashiri’s Pentagon lawyers that asks the justices to intervene in the war court case. Nashiri, 52, is accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing of the warship off Yemen. His lawyers say his years of torture in CIA custody merits pre-trial review of the case. The Supreme Court could announce Monday whether it will accept the challenge. pin on his lapel, a demonstration of his disdain for the hybrid court of military and federal law, which was created in response to the 9/11 attacks. Regardless, the resignations create a series of rolling conundrums for Nashiri’s judge, Air Force Col. Vance Spath. He is due at the war court Oct. 30 for three weeks of pretrial hearings. But by law a capital trial cannot go forward without a seasoned death-penalty counsel, a lawyer learned in the practice of capital punishment. Long-frustrated family members of dead Cole sailors are sure to view the resignations as a stunt designed to derail the trial. Now, only Lt. Alaric Piette, a former Navy SEAL and 2012 Georgetown Law School graduate, continues to represent Nashiri. “I’ve never tried a murder case and I am certainly not qualified as learned counsel,” Piette said by email Friday. Piette added he would be qualified to defend the Saudi “if the death penalty wasn’t on the table.” Nashiri “is entitled to and should have a learned counsel since the government is trying to kill him,” he said. “If he doesn’t have one and the proceedings continue, then this court doesn’t even have the veneer of fairness.” Judges at the war court have no power to order a civilian witness to come to Guantánamo — only to a video link in the United States. That means if Spath wants to question Nashiri’s now former death-penalty lawyer, he would have to do it remotely. Kammen came to the case in 2008 as an Indianapolis criminal defense attorney with considerable death-penalty defense experience. He alienated the parents of sailors killed in the attack, as well as Cole survivors, by sporting a kangaroo “If the government would declassify all the various pleadings that are classified, they would understand why it’s not,” Kammen said. “They would understand.” The surprise resignations follow months of classified defense efforts following Baker’s advice that no place where lawyers meet captives at Guantánamo may be free of government eavesdropping. Defense attorneys in all three active prosecutions, notably in the Sept. 11 case, have been barred from discussing the issue in public — meaning it implicates a Top Secret intelligence program — and have sought in classified sessions and filings to address the problem with their judges. Kammen said he got an ethical opinion from a recognized legal scholar, Ellen Yaroshefsky, and presented it to the general to get permission to leave the case. Prosecutors have dismissed the issue of uncharged captives “unintentionally being overheard” as inconsequential. But Nashiri’s lawyers informed the U.S. Supreme Court in a recent filing that they discovered something — which is blacked out in the public version — “contradicting the prosecution’s assurances.” The judge has forbidden Nashiri’s attorneys from telling him about the problem. “We’re in a position where we cannot meet with our client, and we cannot tell him why we can’t meet with him,” Kammen said, “and that’s an ethically untenable position to be in. Specifically, Spath has ordered that we are not allowed to explain why we can’t meet with him.” Baker said Friday he was searching for another death-penalty defender for the case. But when the possibility of losing a capital defense attorney has come up at the 9/11 trial, lawyers predicted a protracted delay. It would take months, maybe longer to get a death-penalty qualified defender hired. In addition, the new lawyer would need a Top Secret security clearance to catch up in a case involving secret U.S. intelligence programs. Only then would the attorney learn about the secret ethical issue that forced Kammen to quit. Pretrial hearings in the USS Cole case have gone on for nearly six years with both sides still litigating over what evidence Nashiri or his lawyers can see, how to substitute for destroyed CIA evidence, and how much damage Nashiri suffered while in CIA custody from 2002 to 2006. Unclassified documents show he was waterboarded, abused rectally, confined to a coffin-sized box and subjected to other “enhanced interrogation techniques” to break him in interrogation. Kammen estimated that he had devoted at least 10,000 hours working on the case, traveled to at least seven foreign countries in trial preparation and to Guantánamo 50 times to meet with Nashiri or appear in court. Typically at the war court a defense lawyer needs permission from both the chief defense counsel and the captive to quit a case. In this instance, two attorneys said, Nashiri can’t exercise a veto because it involves an ethical issue the judge has forbidden the Saudi’s attorneys from discussing with the highvalue captive. GENERAL NOTIFIES DEFENSE LAWYERS The chief defense counsel, Marine Brig. Gen. John Baker, notified his staff on Friday morning of his approving the unprecedented resignation of the USS Cole civilian defense team. Here is what he said: “On Wednesday, I found good cause to excuse Mr. Kammen as learned counsel and Ms. Eliades and Ms. Spears as defense counsel for Mr. al Nashiri, as each had requested. While this was very difficult decision to make given its impact on Mr. Nashiri and the case, it was an easy decision to find good cause given the information presented by Mr. Kammen, Ms. Eliades and Ms. Spears and the facts as I know them. “This morning LT Piette filed notice of my excusal with the military commission. I notified the [Convening Authority] that I do not have an available conflict-free learned counsel to detail to Mr. al Nashiri and that I have begun the search to find a replacement. I have tasked CAPT Filbert to lead that search effort.” Published Oct. 23, 2017 Available online at http://hrld.us/2ABVnTZ Defense lawyers quit. Not so fast, says war court judge, who orders them to Guantánamo Air Force Col. Vance Spath BY CAROL ROSENBERG crosenberg@miamiherald.com In a new test of the reach of the Guantánamo war court, a military judge has ordered three civilian lawyers who quit the USS Cole defense team to come to court at the remote U.S. Navy base in Cuba next week. Attorneys Rick Kammen, Rosa Eliades and Mary Spears quit their jobs on Oct. 11 as lawyers for the man accused of orchestrating al-Qaida’s warship attack. They obtained permission to do so from the chief defense counsel, Marine Brig. Gen. John Baker, who found “good cause” for their resignations. They cited a cascading ethical conflict over a lack of confidence in the confidentiality of their privileged conversations with Abd al Rahim al Nashiri at Guantánamo, but the details are classified. But the case judge, Air Force Col. Vance Spath, wrote in an Oct. 16 order that, while Baker “purported to find good cause” to approve their leaving the case, Spath, as judge, has not. “Accordingly, Mr. Kammen, Ms. Eliades, and Ms. Spears remain counsel of record in this case, and are ordered to appear at the next scheduled hearing,” Spath wrote. At issue is whether Baker or Spath has the authority to excuse the three civilian lawyers from the case. The war court judge’s bench book, called the Trial Judiciary Rules of Court, says once a civilian lawyer has appeared in court, “excusal must be approved by the military judge.” Nashiri, 52, allegedly ran al-Qaida’s Oct. 12, 2000 suicide bombing of the warship off Yemen that killed 17 U.S. sailors, and wounded dozens of others. He could face military execution, if convicted. Kammen has represented Nashiri as his death-penalty defender since before the Saudi’s arraignment in 2011. The order has raised a series of questions that include who has the authority to relieve a civilian defense attorney of record and whether the judge can enforce his order for civilian lawyers he has not released from a case to come to Guantánamo. I n the case of a witness who ignored a subpoena a year ago, the judge dispatched U.S. marshals to the man’s Massachusetts home to take him into custody. That witness, also a lawyer who had done work for the war court, was jailed for a night, brought to a video-feed site in Virginia and then released after his testimony. Before it happened, in a courtroom discussion of a war court’s authority to compel a witness, lead prosecutor Mark Miller replied: “I think we all agree that we cannot force somebody to come to the island.” In civilian courts, said Duke law professor Madeline Morris, a lawyer needs a judge’s permission to resign. “You can’t very well run a system with counsel of record who just disappear from a case without the judge having any control of that happening,” she said. But if the defense attorneys don’t board a plane to Guantánamo, believing they have been released, it is unclear whether anybody has the authority to order them put on a plane and sent to the U.S. Navy base in southeast Cuba. Spath may have contempt power to find them in violation of a court order, Morris said, but even that would involve a multistep process and be punishable by at most 30 days in a brig or jail and a $1,000 fine. A former attorney who worked at the commissions, Bobby Don Gifford, said a judge may also file a bar complaint with that lawyer’s licensing authority, or a state bar, asserting professional misconduct for failing to show up in court. “I’ve seen it in both federal court and state court.” Morris, who has advised defense teams, cast the “underlying question” raised by Spath’s order to the Nashiri defense team as “Who’s in charge and who gets to decide what is and is not the law for these commissions. You’ve got attorneys saying, ‘I believe I’ve been released.’ You’ve got the chief defense attorney saying, ‘I have released them.’ You’ve got a judge saying, ‘I don’t believe it works that way.’ Who decides? Is it a federal court? At what juncture?” Nashiri has one military lawyer, Navy Lt. Alaric Piette, a former Navy SEAL. He said Monday he’s not qualified to serve as a death-penalty defender, or learned counsel as they are known. Another military lawyer, Air Force Maj. Brett Robinson, recently obtained a security clearance to sit inside the maximum-security courtroom but has yet to meet with Nashiri, or be accepted by him. Baker has assigned two other military attorneys to the case but both await security clearances. Published Oct. 29, 2017 Available online at http://hrld.us/2okTEAQ Civilian lawyers defy judge’s order to travel to Guantánamo for war court showdown Three empty seats on Sunday’s Military Commissions flight to the U.S. Navy Base at Guantánamo Bay, Cuba. Photo by Carol Rosenberg BY CAROL ROSENBERG crosenberg@miamiherald.com ANDREWS AIR FORCE BASE, MARYLAND A Pentagon shuttle departed for Guantánamo Sunday morning without three civilian lawyers who quit the USS Cole case, setting the stage for a showdown Monday with the military judge who ordered them to the remote U.S. Navy base in Cuba. Veteran death-penalty defense attorney Rick Kammen and colleagues Rosa Eliades and Mary Spears resigned from the team Oct. 11 over a classified ethical conflict. The judge said, under his reading of the rulebook, they cannot leave the case without his permission. “The military judge has ordered U.S. citizens to go to what the government claims is a foreign country to provide unethical legal services to keep the façade of justice that is the military commissions running. This order is illegal and neither I nor the other civilians are going to Guantánamo,” Kammen told the Miami Herald Sunday morning. “The fundamental problem, of course, is government misconduct and the judge’s willingness to tolerate this misconduct, which gives rise to the requirement that we withdraw as Mr. alNashiri’s lawyers.” The special Pentagon charter specifically shuttled attorneys and other war court staff for a scheduled three-week pretrial hearing in the capital case against Abd al Rahim al Nashiri, 52. The Saudi is accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing of the warship off Yemen that killed 17 U.S. sailors, and wounded dozens of others. authorized the resignations of Kammen, Eliades and Spears after they briefed him on a covert breach of attorney-client privilege involving something so secretive at the prison neither Nashiri nor the public can know the details. In an Oct. 24 filing, Baker advised Spath that he released the trio after “a thorough review of the relevant facts, both classified and unclassified, and the legal parameters of my supervisory authority,” that considered advice from “a prominent legal ethicist, Professor Ellen Yaroshefsky.” Baker wrote that, as chief defense counsel, he has “unilateral, unreviewable authority to excuse counsel for good cause.” Now that he’s done that, he wrote, “Nowhere do the Rules make provision for the review or reversal of that determination.” On Oct. 16, Spath ordered them to appear in court, saying that while the general “purported to find good cause” to approve their leaving the case, Spath, as judge, has not. “Accordingly, Mr. Kammen, Ms. Eliades, and Ms. Spears remain counsel of record in this case, and are ordered to appear at the next scheduled hearing.” Kammen has represented him as his death-penalty defender for a decade; the other two women came to the case later. Only a Navy lieutenant with a 2012 Georgetown Law degree but no capital experience remains on the case. Those on board Sunday’s flight included the judge, Air Force Col. Vance Spath, and Marine Brig. Gen. John Baker, the chief defense counsel for military commissions, and his counterpart, Army Brig. Gen. Mark Martins. Baker From left, civilian Pentagon employed lawyers Rosa Eliades and Mary Spears. Courtesy the attorneys Their absence is likely the first order of business Monday because, under the rules of court, a hearing requires a lawyer specializing in the death-penalty to proceed. It was yet to be seen if anybody has the authority to order them put on a plane and sent to Guantánamo. When a subpoenaed witness failed to show up to testify by video-feed to the base last year, the judge dispatched U.S. marshals to the man’s Massachusetts home, had him held in a Virginia jail overnight and taken to a Pentagon-run video-conference room. Before that happened, the lead USS Cole case prosecutor, Mark Miller, said, “I think we all agree that we cannot force somebody to come to the island.” MORE DETAILS: In war court first, stubborn witness testifies at Guantánamo by video after night in Virginia jail The tug-of-war over authority to excuse the attorneys is based upon different rule books governing the war court created by President George W. Bush after the Sept. 11, 2001 attacks and reformed by President Barack Obama to expand the rights of the accused. The war court judge’s bench book, called the Trial Judiciary Rules of Court, says once a civilian lawyer has appeared in court, “excusal must be approved by the military judge.” But the Manual for Military Commissions, from which the rules are drawn, says the authority who appointed the lawyer gets to excuse the lawyer for good cause. In response to a question about Spath’s authority to enforce his appearance order, a Pentagon spokesman noted that the judge has forced a witness to testify and can find someone in contempt of court. The contempt option involves a multistep process, including an opportunity to appeal and have a Pentagon official review the finding, and may be punishable by 30 days in a brig or jail and a $1,000 fine. Sunday’s shuttle carried everyone else involved in the case, including the civilian prosecutors as well as Navy Lt. Alaric Piette, a former Navy SEAL and the lone member of Nashiri’s defense team who the Saudi has met and accepted. Baker has assigned three other military lawyers to the case but none have sufficient experience to function as a death-penalty defender, called learned counsel, and two await security clearances to come to court. Unusually, no survivors of the al-Qaida attack or family members of the sailors killed that day were attending the first week of the hearings. Some were expected in the second and third weeks. One week of the hearings was being devoted to the closed-door crossexamination of a Guantánamo prisoner, Ahmed al Darbi. He testified against Nashiri in August, and expects to go home to Saudi Arabia early next year to serve out a 13-year sentence. Kammen was to handle the closed deposition. Yet to be seen, however, is if Spath will insist that Piette do it. Published Nov. 1, 2017 Available online at http://hrld.us/2z9GYR8 Gitmo judge sends Marine general lawyer to 21 days confinement for disobeying orders A view of the Camp Justice trailer park where the chief of war court defense lawyers, Marine Brig. Gen. John Baker, was sentenced to spend 21 days. This image for a time appeared in the facilities section of the war court website whose motto is Fairness * Transparency * Justice. BY CAROL ROSENBERG crosenberg@miamiherald.com GUANTANAMO BAY NAVY BASE, CUBA The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow the judge’s orders and sentenced him to 21 days confinement and to pay a $1,000 fine. Air Force Col. Vance Spath also declared “null and void” a decision by Marine Brig. Gen. John Baker, 50, to release three civilian defense attorneys from the capital terror case. The lawyers resigned last month over a covert breach of attorney-client privilege involving something so secretive at the terror prison that the public cannot know. justice that is the military commissions running.” Wednesday evening, with Baker confined to his quarters in a trailer park behind the courthouse, Judge Spath issued another order: Directing the three lawyers — Rick Kammen, Rosa Eliades and Mary Spears — to litigate Friday in the death-penalty case against Abd al Rahim al Nashiri remotely from the Washington D.C., area by video feed to Guantánamo. Baker is the chief defense counsel for military commissions, and the second highest-ranking lawyer in the Marine Corps. He had excused Kammen, Eliades and Spears from the case on ethical grounds, and refused to rescind the order —prompting the judge to find him in contempt of court. Baker also invoked a privilege stemming from his oversight role and refused Spath’s order to swear an oath and testify in his court. The judge’s dizzying pace of events— sentencing the Marine general in a 35minute hearing, then ordering three civilian lawyers to defend the Saudi in his capital case by video link — came as the colonel sought to force the civilian, Pentagon-paid attorneys back on the case. Spath, who has declared they had no good cause to quit, had ordered Kammen, Eliades and Spears to come to Guantánamo on Sunday with other war court staff for a pretrial hearing. They refused. Kammen, a veteran capital defense attorney who had represented Nashiri for a decade, said Spath’s order to travel was an “illegal” effort to have three U.S. citizens “provide unethical legal services to keep the façade of Marine Brig. Gen. John Baker Nashiri is accused of orchestrating al Qaida’s Oct. 12, 2000 suicide bombing of the U.S. warship off Yemen. Seventeen sailors died, and dozens more were injured. He has been in U.S. custody for 15 years, and was arraigned in 2011. No trial date has been set in part because the sides were still haggling over what Top Secret evidence the defense can see as it prepares for trial. Also, Nashiri needs to have a court-ordered MRI to see if he suffered brain damage during his four years in secret CIA custody. He was waterboarded, kept in a coffin-sized box and subjected to other cruel treatment detailed in the Senate’s “Torture Report.” In his latest order, Spath threatened the three civilian lawyers with a contempt of court finding too. In Spath’s court Wednesday, Baker attempted to protest that the war court meant to try alleged foreign terrorists had no jurisdiction over him, a U.S. citizen. Spath refused to let him speak and ordered him to sit down. “There’s things that I want to say, and you are telling me that I cannot say them,” Baker said. Spath replied, “This is really not a pleasant decision,” calling the proceedings neither “fun” nor “lighthearted.” Saudi Abd al Rahim al Nashiri during his Nov. 9, 2011 military commissions arraignment at the U.S. Navy base at Guantánamo Bay, Cuba, in a sketch by artist Janet Hamlin approved for release by a court security officer. He told them to appear at 8 a.m. Friday at Military Commissions headquarters in Alexandria, Virginia. The Pentagon would provide a link with the Top Secret courthouse in Cuba on Friday for a hearing — expected to take testimony from an unnamed witness — and would also set up “secure terminal equipment” for the accused terrorist, Nashiri, if they wanted to consult, the order said. Spath issued the order to the three civilians more than six hours after he sentenced the general to 21 days confinement in his quarters, which happen to be in a trailer behind the war court compound called Camp Justice. On Thursday, a federal judge holds a hearing on whether to halt the war court hearings because Nashiri lacks a learned counsel. Spath said Baker was out of line in invoking a privilege. Privilege, the Air Force judge declared, is a judge’s domain and a judge has the authority to weigh and review privilege. Without that, Spath said, there would be “havoc in every system of justice.” He added that, if left unchecked, a chief defense counsel would have the power to essentially dismiss a war court case. The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review Baker’s sentence. Defense Department spokesman Maj. Ben Sakrisson said Rishikof “will determine whether to affirm, defer, suspend or disapprove the sentence in the next few days.” Wednesday’s was the first contempt conviction in the post- 9/11 military commissions. In fact, no other war court judge has held a contempt proceeding. Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay.” In Washington D.C., Wednesday, a defense lawyer who works for Baker asked a federal judge to halt this week’s USS Cole case hearings because Kammen’s resignation left Nashiri without a criminal defense attorney with capital experience. Air Force Col. Vance Spath Baker, the second-highest ranking lawyer in the Marine Corps, is a 28-year career officer who got his law degree from the University of Pittsburgh in 1997. Baker applied for the job two years ago, which came with a promotion, as a colonel at the Marine Corps Military Justice and Community Development unit. He has served as both a defense attorney and prosecutor on traditional military court-martial cases. And he has emerged as an outspoken critic of the hybrid military-federal justice system set up by President George W. Bush after the Sept. 11, 2001 attacks and subsequently reformed by President Barack Obama. “Put simply, the military commissions in their current state are a farce,” Baker said in a talk last year in a national security program. “Instead of being a beacon for the rule of law, the The law governing military commissions says a defendant is required to have a capital defense attorney. Spath said Wednesday he intended to proceed with pretrial hearings with Nashiri represented at Guantánamo by a junior Navy lawyer with no death-penalty experience. He ruled from the bench a day earlier that “learned counsel are not practicable in the near term, if ever, by the actions of General Baker.” U.S. District Court Judge Royce Lamberth scheduled a hearing at the federal court on 333 Constitution Ave., in Washington, D.C., for 9:30 a.m. Thursday, when no session is scheduled for the war court at Guantánamo. Lamberth is the judge of record in Nashiri’s mostly dormant habeas corpus petition. His courthouse also is the judicial branch’s keeper of a copy of the so-called Senate Torture Report that investigated the CIA’s post- 9/11 secret prison network. The federal court petition argued for delay. “No evidence is imminently likely to disappear or degrade in value. Indeed, this case has already entered its ninth year of pretrial proceedings and [Nashiri] has been in U.S. custody, without any meaningful judicial review, for 15 years.” Nashiri was captured in 2002 and disappeared into the CIA’s network of secret prisons known as the Black Sites until his September 2006 transfer to this Navy base in southeast Cuba. He was arraigned in 2011. PENTAGON STATEMENT Brig. Gen. Baker was escorted from the Expeditionary Legal Complex this afternoon by Naval Station Masters at Arms to serve the ordered confinement in his quarters at Naval Station Guantanamo Bay. He wore his duty uniform. Once General Baker returns to his quarters he will report telephonically every 2 hours (other than 8 hours for sleep) to verify that he has remained in quarters. There will not be a guard posted outside General Baker's quarters as it is expected that as a senior officer he will comply with the conditions of confinement. As in any U.S. State, Federal, or Military Court, the judge has the obligation and power to enforce decorum in the courtroom. Rule for Military Commission 801 outlines this responsibility. “The military judge is responsible for ensuring that military commission proceedings are conducted in a fair and orderly manner, without unnecessary delay or waste of time or resources.” The Military Commissions Act of 2009, Section 949t specifically defines contempt as a criminal violation punishable by military commission. Rule 809 provides the basis for adjudication of contempt in military commissions and provides a maximum sentence of no more than a $1,000 fine and 30 days in confinement, or both. Under that Rule, the Convening Authority designates the place of confinement. The Military Judge today ordered General Baker to be confined to his quarters at Guantanamo Bay, Cuba. The Convening Authority will determine whether to affirm, defer, suspend or disapprove the sentence in the next few days. Air Force Maj. Ben Sakrisson, Pentagon spokesman Published Nov. 3, 2017 Available online at http://hrld.us/2BiflnR Lone Navy defender refuses to question witness in USS Cole hearing Attorney Navy Lt. Alaric Piette, with his SEAL trident topping his uniform, at the U.S. Navy base at Guantánamo Bay, Cuba, on Nov. 3, 2017 soon after the 2012 Georgetown Law graduate advised the USS Cole case judge that in the absence of an experience death-penalty defender he was unqualified to argue motions or question witnesses in the capital trial of Saudi Abd al Rahim al Nashiri. This photo was reviewed and approved for release by the U.S. military. Photo by Carol Rosenberg BY CAROL ROSENBERG crosenberg@miamiherald.com GUANTANAMO BAY NAVY BASE, CUBA Three civilian defense lawyers who quit the USS Cole case defied the trial judge’s order to appear in court on Friday by video feed from Virginia. But the judge went forward with a pretrial hearing anyway, without participation of a defense attorney. “No one’s here, sir,” a technician told Air Force Col. Vance Spath, the judge, in a live feed from military commission headquarters in Alexandria, Virginia. Spath noted the absence of Department of Defense defense attorneys Rosa Elaides and Mary Spears as well as Richard Kammen, the long-serving, capital defense attorney on contract for accused terrorist Abd al Rahim al Nashiri, until all three quit over a secret ethical issue. Then the judge plunged ahead with pretrial hearings and testimony from an FBI agent. The morning testimony looked routine. Lead prosecutor Mark Miller asked FBI agent Stephen Gaudin, brought in from the U.S. Embassy in Abu Dhabi, about decade-old interrogations of various key case witnesses, including the alleged mastermind of the Cole bombing, who was sitting in court. But the testimony was unusual in this respect: Defense attorneys had sought to question the agent as part of an ongoing bid to exclude certain evidence from the trial. Nashiri’s only attorney in court, Navy Lt. Alaric Piette, refused to question Gaudin. The lieutenant, who has practiced law for five years, said he was bound not to question the witness unless there was a defense attorney with experience in the practice of deathpenalty cases in court. So Miller did. “We are not participating due to the fact that I am not qualified as learned counsel,” said Piette, a former Navy SEAL and 2012 graduate of Georgetown Law with no experience in a deathpenalty trial. Later, the USS Cole prosecutor angrily denounced the civilian defense attorneys’ absence as part of a “scorched-earth strategy to disrupt by any means, however frivolous, or however cynical.” Miller, an assistant U.S. attorney on loan to the case from the New Orleans office, accused Marine Brig. Gen. John Baker, chief defense counsel for military commissions, of colluding with the civilians to try to halt the trial. Kammen, Eliades and Spears quit the case last month with Baker’s permission. Spath sentenced Baker to 21 days confinement in his quarters, a trailer behind the courthouse at the Camp Justice compound, for refusing to return the three civilian attorneys to the case. The senior Pentagon official overseeing military commissions, Harvey Rishikof, suspended that sentence Friday afternoon, the general’s third day of confinement, pending a review. Pentagon spokesman Air Force Maj. Ben Sakrisson said Baker was delivered a letter Friday afternoon “notifying him that the imposition of the remainder of his sentence was delayed until [Rishikof] makes a final decision on the matter.” RELATED: Chief defense counsel released from contempt sentence in USS Cole case Miller accused Piette of adopting a “potted plant defense,” and said the 17 American sailors killed aboard the USS Cole off Yemen on Oct. 12, 2000, “deserve justice.” Nashiri, a 52-year-old Saudi, is accused of orchestrating the al-Qaida suicide bombing and could be executed if convicted. Miller dismissed the ethical excuse as “factually and legally vacuous.” He decried their outside ethics opinion as the work of a known opponent of military commissions. And he accused the general of conspiring with Kammen and the others to excuse them. Piette, who was serving as a SEAL at the time of the Cole attack, declared himself mindful of the victims, “my shipmates and their families.” He invoked a character from the TV show The Wire, Baltimore police detective Lester Freamon as saying, “all the pieces matter.” “My duty is solely to the interest of Mr. al Nashiri,” Piette told the judge, repeatedly saying that as a lawyer with no capital experience he was not qualified to participate without a deathpenalty defender in court. He asked the judge to not look at the absence of Kammen, Eliades and Spears through Miller’s cynical prism, or as a trial strategy of choice. “Attorneys who care about their client, care about their job, care about justice aren’t willing to give up those things,” he said. Piette also drew an Air Force analogy, saying an aircraft should not take off without going through a checklist and having all systems working. “Ground the plane until I can run around and find somebody” to serve as learned counsel, Piette asked the judge. The judge replied that would be the responsibility of Baker, the chief defense counsel, but for his being confined to quarters. In his place, Spath said, Army Col. Wayne Aaron, the deputy chief defense counsel, should be hiring a lawyer learned in the practice of capital punishment defense. In Washington, D.C., Friday afternoon, U.S. District Court Judge Royce Lamberth declined to weigh in on Spath’s authority to confine Baker for contempt of court, because of the decision to release the general pending review. Still to be seen is whether Spath will rule Kammen, Eliades and Spears in contempt and order U.S. marshals to pick them up and deliver them to the video feed site in Virginia. It was the second time in less than a week that the three defense attorneys ignored the judge’s order to appear. Kammen said the three lawyers filed preemptive habeas corpus or unlawful detention petitions in Indiana, Illinois and Virginia courts in case Spath ordered their arrest — a fact that the military judge noted in court Friday with some puzzlement, since he hadn’t decided whether or not to do it. Sunday when they pointedly missed a flight to this remote base from the U.S., Kammen said Spath ordered “U.S. citizens to go to what the government claims is a foreign country to provide unethical legal services to keep the façade of justice that is the military commissions running. This order is illegal.” Published Nov. 3, 2017 Available online at http://hrld.us/2jZ9ufD Pentagon official frees Marine general confined to quarters at Guantánamo. For now. Brig. Gen. John Baker, moments after leaving his trailer, where he was confined for contempt of court, on his way back to work on Nov. 3, 2017. This photo was reviewed and approved for release by a member of the U.S. military. Photo by Carol Rosenberg BY KATE IRBY AND CAROL ROSENBERG crosenberg@miamiherald.com WASHINGTON A senior Pentagon official on Friday ordered the release of a Marine general confined to his trailer park quarters at Guantánamo’s Camp Justice for refusing to obey a military judge’s order. Brig. Gen. John Baker, 50, was in the third day of a 21-day contempt sentence issued by the military judge in the USS Cole case from a dispute over who has the authority to release attorneys of record. Baker, a 28-year career military officer, is the second highest-ranking lawyer in the Marine Corps and chief defense counsel for military commissions. The release was ordered just before a federal judge held a hearing in Washington, D.C., on a habeas corpus, unlawful detention petition brought on Baker’s behalf by a group of civilian criminal defense lawyers. However, the sentence could be re-imposed later, and Baker’s contempt conviction was not vacated. The senior Pentagon official overseeing military commissions, Harvey Rishikof, called the convening authority, suspended that sentence, pending a review. At Guantánamo, Baker got a letter at his trailer at 1 p.m. “notifying him that the imposition of the remainder of his sentence was delayed until the Convening Authority makes a final decision on the matter,” said Pentagon spokesman Air Force Maj. Ben Sakrisson. compound called Camp Justice. Baker was wearing a Marine combat uniform, typical of his attire at the base in southeast Cuba when he’s not in court, and stopped his jeep long enough to permit a quick photograph. Soon after, at the U.S. District Court on 333 Constitution Ave., Judge Royce Lamberth chose not to rule on the lawfulness of Baker’s detention, saying the military had made a “wise decision” by releasing Baker. But, he said, if the military didn’t take further action in a “reasonable” amount of time, he might further review the case later. “I’m not going to stand down, I’m simply going to give the military time to clean up its own act,” Lamberth said. “And its first step was a good one.” Michel Paradis, a civilian appellate lawyer who works for Baker, said that while Baker’s release was a positive step, the deferred sentence was still problematic. Paradis said under his understanding of the law, the military authority that ordered Baker freed does not have the power to overturn his conviction. “At any time, the convening authority can reimpose the sentence on him,” Paradis said — even a decade from now. As he goes about his duties as chief defense counsel, the possibility of having to go back into detention will be “a sword over his head.” Harvey Rishikof, Military Commissions convening authority, on Sept. 16, 2014, before taking the post. CSPAN The general had no comment as he headed to his hilltop office overlooking the maximum-security war court Baker has refused an order by the USS Cole case judge, Air Force Col. Vance Spath, to rescind his decision to release three civilian defense lawyers from the case. At issue is whether he or Spath actually has the power to let war court lawyers of record go. Spath says that’s the role of a judge. Baker says in the case of military commissions, the tribunal system set up after the Sept. 11 attacks, it is solely his domain. The three defense lawyers — Rick Kammen, Rosa Eliades and Mary Spears — asked to be taken off the case of Abd al Rahim al Nashiri, who is accused of plotting the al Qaeda suicide bombing of the warship off Aden, Yemen, in October 2000. Seventeen U.S. sailors died in the attack, and Nashiri could face execution if he’s convicted. The lawyers cited classified ethical reasons as requiring their resignations, but without their participation Nashiri does not have an attorney trained in capital defense on his team. Nashiri’s pretrial hearings continued Friday, despite the absence of the three lawyers. His lone remaining attorney, Navy Lt. Alaric Piette, refused to question some witnesses that were called to be there by the defense, saying he had done no cross-examinations in a capital case before. Miami Herald reporter Carol Rosenberg reported from Guantánamo; McClatchy correspondent Kate Irby from Washington, D.C Published Nov. 8, 2017 Available online at http://hrld.us/2AC2Xhp USS Cole’s deck was scene of ‘chaos, panic’ after al-Qaida’s bombing Yemeni fishermen pass by the damaged USS Cole in Aden in this file photo dated Oct. 28, 2000. HASAN JAMALI ASSOCIATED PRESS bomb exploded during a refueling operation in the port of Aden, Yemen, on Oct. 12, 2000. ASSOCIATED PRESS BY CAROL ROSENBERG crosenberg@miamiherald.com GUANTANAMO BAY NAVY BASE, CUBA A gunner’s mate aboard the USS Cole when suicide bombers attacked it off Yemen in 2000 testified on Wednesday that there was chaos and panic aboard the foundering ship as sailors dealt with the al-Qaida bombing. In fact, retired Petty Officer Aaron Morgan said, he first suspected a refueling accident when while below deck he felt a thud and the 8,300-ton warship began listing. He suited up for an emergency and went on deck to find a scene of “pretty much chaos. You had people just panicking, some didn’t know what to do. Everyone was in fear.” The ship’s ostensibly “nonskid deck” was slippery. “There was so many smells at once. Burned fuel and smoke ... in the air.” Federal agents who arrived days later to collect evidence testified Wednesday that the smell would come to include rotting meat from the ship’s destroyed dining room freezer as well as decomposing flesh of bombing victims. sailors’ dining room, the galley. Saudi captive Abd al Rahim al Nashiri who was brought here in 2006 from four years in CIA custody, is accused of orchestrating that bombing. He could be executed if convicted. Morgan recalled learning, as the ship pulled into Yemen’s port of Aden for a resupply mission, that there would be no shore leave. So, he said he was “kind of enthused about seeing the country” from the deck, looking down on a Yemeni skiff that pulled alongside Cole to collect its garbage. He went below at lunch time, but to a different part of the ship, for a meeting of a social welfare committee. That’s when he felt and heard the explosion. At one point, he recalled coaxing a wounded shipmate to a rope to pull her from the water. The sailor had jumped into the sea through a hole created by the blast from her workspace, a laboratory. Morgan testified Wednesday to vouch for a piece of evidence — black debris he collected on deck and delivered to an FBI agent whose name he did not know. But he began by telling his story in the hearing that resumed from March, when FBI witnesses described collecting debris aboard the damaged ship as evidence. An injured sailor from aboard the USS Cole cries during a memorial service at Norfolk Naval Station on October 18, 2000. STEVE HELBER ASSOCIATED PRESS Seventeen sailors were killed in the Oct. 12, 2000 attack by suicide bombers who pulled alongside the ship in a garbage skiff, blew themselves up and put a huge hole into the portion of the ship near the This week had one key difference: Three civilian lawyers who took part in that March hearing were absent, having resigned the case in a standoff with the judge over who has the authority to excuse an attorney of record. Notably absent was Rick Kammen, the defense team’s long-serving death-penalty defender, who declared he could not go on because of an ethics problem involving something classified that threatened confidentiality. attorney-client RELATED: Civilian lawyers defy judge’s order to travel to Guantánamo for war court showdown So Wednesday, while Nashiri was voluntarily absent, too, at a medical appointment, Navy Lt. Alaric Piette, functioned as the lone defense attorney on the case — and refused to participate in the hearing. The 2012 Georgetown Law graduate said in the absence of a lawyer with death-penalty experience, he was required to take no position. The judge, Air Force Col. Vance Spath, responded that in fact he was taking a position that suggested a defense strategy of non-participation. Spath told Piette, who has handled 15 court martial cases to a verdict, that he was clearly qualified to question witnesses about evidence, calling it “blocking and tackling type of things we do in any trial, capital and non-capital.” Prosecutors want to get the evidence approved before a military jury is chosen and the trial begins. Before the civilian defense lawyers quit, they opposed doing the admission out of sight of a jury. Spath set aside Monday for testimony from Hofstra Law School ethicist Ellen Yaroshefsky, who advised Nashiri’s defenders to quit over the classified attorney-client confidentiality issue, which she did not know in detail. Emily Olson-Gault is director and chief counsel at the American Bar Association’s Death Penalty Representation Project. Courtesy the ABA Spath has also ordered video-link testimony Monday from war court headquarters in Alexandria, Virginia, from the director of the American Bar Association’s Death Penalty Defense Project Emily Olson-Gault. In an affidavit for the court, she said ABA standards require a learned counsel at every phase of a capital case, including the pretrial and trial. Spath in court Wednesday made clear that the war court is not bound by ABA standards and said he has chosen the parts of the death-penalty case that can be litigated at that point in the absence of a death-penalty defender. Published Nov. 13, 2017 Available online at http://hrld.us/2Be7F6f He became a SEAL to fight terrorists. Now he’s a Navy lawyer defending an accused one Attorney Navy Lt. Alaric Piette, with his SEAL trident topping his uniform, at the U.S. Navy base at Guantánamo Bay, Cuba, on Nov. 3, 2017. Photo by Carol Rosenberg BY CAROL ROSENBERG crosenberg@miamiherald.com GUANTANAMO BAY NAVY BASE, CUBA After suicide bombers attacked the USS Cole 17 years ago, this young Navy SEAL from Wisconsin would have gladly risked his life on a mission to snatch someone suspected of plotting the attack that killed 17 U.S. sailors. Now, the former SEAL sits in the war court with the man accused of orchestrating the bombing that killed his shipmates. And Navy Lt. Alaric Piette, 39, is navigating a different kind of treacherous assignment. Piette, a lawyer for just five years, is the lone attorney in court representing Saudi captive Abd al Rahim al Nashiri, whose long-serving death-penalty defender and two other civilian lawyers quit the case over a clandestine ethical conflict. So across two weeks of court hearings, Piette has answered the trial judge’s instruction to litigate by arguing that until a new capital defender is found, the case cannot go on. “When military attorneys are assigned to these cases, people just expect us to go along and roll over. And I’m not going to,” Piette said in an interview at the end of a week in which the judge sentenced the Marine general overseeing the defense teams to 21 days confinement for letting Nashiri’s civilian lawyers quit. Piette was one of the last military attorneys hired on the team led by Rick Kammen, the 71-year-old capital defense attorney from Indiana who for years led a constantly changing cast of military lawyers with a kangaroo pin on his lapel to express his contempt for the war court system. Their courtroom style is a study in contrasts. Where Kammen wore a kangaroo pin, Piette wears the coveted trident of a SEAL, the elite Navy unit whose slogan is “the only easy day was yesterday.” Where Kammen was confrontational in both words and attire, Piette has been nothing but courteous, even as he has explained again and again that he must sit mute alongside Nashiri, litigate no motions and question no witnesses until a qualified death-penalty defense attorney arrives in court. Nashiri, 52, is accused of orchestrating al-Qaida’s Oct. 12, 2000, bombing of the Cole while it was on a resupply mission off Aden, Yemen. Two men pulled alongside in an explosives-laden skiff, ostensibly to collect the ship’s garbage, then blew themselves up. From left, Lt. Alaric Piette on Nov. 3, 2017 and capital defense attorney Rick Kammen on June 2, 2013 at Camp Justice, the U.S. Navy base at Guantánamo Bay, Cuba, in images approved for release by the U.S. military. Photos by Carol Rosenberg Nashiri was captured in Dubai in 2002 and held for four years in the CIA’s Black Sites, where he was waterboarded, rectally abused and subjected to other torture techniques. He was first charged at Guantánamo in 2011, five years after his arrival. All those circumstances have caused delays in getting him to trial. After a clearly frustrated lead prosecutor Mark Miller fired off an invective against defense lawyers — accusing the Marine general in charge of “obstruction” and the civilian attorneys of adopting a “scorched-earth strategy,” and calling Piette “a potted plant defense” — the soft-spoken Navy lieutenant responded with this: “What I am asking — the only reason I’m up here now — is to ask the courts, when they’re looking at this on the record, to look deeply and without the hats of cynicism and understand that everybody here cares about justice and getting to the truth.” Kammen spent years overtly salting the record with asides for a post-conviction appeal in civilian courts. With that remark, Piette did the same. The contrast doesn’t end there. Kammen started practicing law seven years before Piette was born in Wisconsin to a family of Belgian ancestry. Kammen says he has defended about 40 capital cases, none ending in a death sentence, and has never voluntarily left one before. Kammen handled his first capital case before Piette was in first grade. Piette has worked on none. But on one issue they are in agreement: Something secret has gone on at the prison to make it impossible for any defense attorney to trust in the confidentiality of privileged attorneyclient conversations. And because it’s classified, neither Nashiri nor the public can know precisely what it is. Piette says he has the same ethical conflict as the three lawyers who quit: He can’t carry on confidential conversations with Nashiri, and can’t provide the Saudi with a classified explanation. But he has stayed on the case in part because, as a military attorney, it took him longer to get an ethics opinion through Navy channels. By then, Kammen and fellow civilian defenders Rosa Eliades and Mary Spears had all resigned. “The only reason I think I can stay on right now is because I view my scope of representation as limited solely to getting him a learned counsel, and making sure that his rights aren’t violated while he doesn’t have learned counsel,” Piette said. “I am not representing him on substantive matters for the trial.” Now, he said, he has a duty to represent Nashiri — not by arguing motions or filing new pleadings but by helping him find capital counsel. Only after that person is found, gets top secret clearances, reads the record, and finds out about the classified confidentiality problem, might that attorney decide whether he or she is ethically bound to quit the case as well. The trial judge, Air Force Col. Vance Spath, meantime has been hearing from witnesses on potential trial evidence — basic litigation, as the judge sees it, that any lawyer with court-martial experience can handle. “Death is different,” says Piette. Last week he responded to every opportunity to argue or cross-examine witnesses by saying the defense has no position because no learned counsel is in court. Spath, who at one point considered holding Piette in contempt, replied on Friday: “There is a position and a strategic decision from the defense and the defense community.” Three more military defense attorneys are waiting in the wings — two from the Air Force, the other a Marine. None is death-penalty qualified. But, to Spath’s annoyance, Piette sits there alone. “I think Colonel Spath, whom I have a lot of respect for, is in a bad position,” Piette said, explaining that the Manual for Military Commissions gives the chief defense counsel authority to hire and fire. That authority exists in “no other court in the United States,” he said. In other U.S. courts an attorney of record must go before a judge to be released from a case. Spath argues his power is the same. So much so that, after Marine Brig. Gen. John Baker, the chief defense counsel for military commissions, refused to return Kammen and the other civilian attorneys to the case, the judge found the general in contempt of the war court and ordered him confined to his quarters in a trailer park behind the court for 21 days. A senior Pentagon official suspended that sentence after 48 hours. Piette got to the case in April and only got a clearance to begin seeing classified material in June. But he said that even while he was a junior lawyer representing sailors accused of housing allowance fraud, he followed Guantánamo’s USS Cole case. Navy colleagues and mentors had served as defense attorneys at the military commissions. Tom Clancy novels, Michael Bay movies and a shadowy terrorist named Osama bin Laden drew him to the SEALs from high school, Piette said. By his account, he didn’t really know anything about al-Qaida but from the news, but he was well aware of the “audacious” Feb. 26, 1993, first World Trade Center bombing and enlisted four years later. After six months of indoctrination and Basic Underwater Demolition SEALS training, he was assigned to SEAL Team Two. “I had joined the Navy because I thought there was this covert war on terror going on,” he said. “I thought it was clear, if they’re willing to do that, they’re not going to stop. So we must be fighting this war out there, that’s a secret nobody knows about. And I wanted to be part of that; thought that would be cool.” He felt that even more so after the bombing of the USS Cole. “I thought after the Cole happened that we were going to go to war and start doing the things I came in to do. We didn’t. Not until after September 11th.” Piette says that he never saw combat as a SEAL and never fired a shot outside training, and his missions were mostly “recons” and the occasional “snatch and grab” in Kosovo, a hot area of commando activity at the time. He didn’t know much about who the targets were, but says he believes they were mostly weapons smugglers who were ultimately let go. Had his team been ordered to snatch someone suspected of being the USS Cole bomber, Piette “would’ve been happy to do it,” he said. “Whoever did this killed my fellow sailors. I would’ve been eager to do it. “I actually had to have a friend talk me down about my anger about the issue. He said, ‘Look, it’s upsetting but at the same time that’s why we’re here, that’s why we wear the uniform. So we’re the targets.’ ” Truth be told, he said, had a target ever been identified for a snatch-and grab, that assignment would have no doubt gone to SEAL Team Six, the best of the best. But none was. It was only after he left the Navy, got a bachelor’s degree at Old Dominion University and went on to study law at Georgetown that he began to think hard about defendants and due process. “Prosecutors tend to be so judgmental and dismissive of these human beings and think that people make out these well thought-out deliberate choices. It’s just people, living.” He said he studied law “intending to become rich,” and pay for his degree. But at a Georgetown legal clinic he found his calling in criminal defense. If the Public Defender Service for the District of Columbia had accepted his application, he said, he never would have turned to the Navy Judge Advocate General’s Corps. Now the lone defense lawyer in court, he said his time as a SEAL is serving him well. “Sometimes I miss parts of it but I’ve found my calling as a criminal defense lawyer.” Being in the teams taught him “the paramount importance of disciplined and thorough preparation.” In his five years as a naval officer, he has tried 15 cases to court martial verdict. Probably the most serious crime he handled was a sailor accused of attempted murder. Piette, who got it reduced to battery, called it classic prosecution overcharging. But he says he’s learned a lot from his clients — about human struggle and consequences — and to distrust career prosecutors, whom he describes as “often arrogant and smug.” It sounds nerdy, perhaps dull — not exactly fodder for an action thriller. But this is a man who points to his favorite part of the SEAL code as this: “Excel as warriors through discipline and innovation.” Published Nov. 16, 2017 Available online at http://hrld.us/2zLRIFJ After years of letting captives own their artwork, Pentagon calls it U.S. property. And may burn it. The prison at Guantánamo Bay, Cuba, put its stamp of approval for release on the sail of this model ship built by Yemeni captive Moath al Alwi from paper and other found objects at the Camp 6 communal prison for low value detainees. It was on display on Oct. 25, 2017 at the John Jay College of Criminal Justice as part of an exhibit of art made at the prison by captives past and present. Photo by Carol Rosenberg BY CAROL ROSENBERG crosenberg@miamiherald.com GUANTANAMO BAY NAVY BASE, CUBA The military has decided that art made by wartime captives is U.S. government property and has stopped releases of security-screened prisoner art to the public. One attorney says the U.S. military intends to burn cellblock art. The new source of tension in the 41captive prison is stirring a fundamental question: Who owns art? The state or the artist? U.S. military officials declined to explain what caused them to abandon the years-long practice of releasing detainee art after inspection by prison workers schooled in studying material for secret messages under the rubric of Operational Security. But an ongoing exhibit at New York’s John Jay College of Criminal Justice featuring paintings and other works by current and former captives — which garnered international press coverage — apparently caught the attention of the Department of Defense. Online, the exhibition called “Ode to the Sea,” offered an email address for people “interested in purchasing art from these artists.” captive gets to leave Guantánamo “their art would not even be allowed out with them and would be incinerated instead.” Attorney Beth Jacob said a different client told her by telephone from the prison that “the colonel” announced that “they could continue to make art. But the number of pieces each could have would be limited, and excess ones would be discarded.” A Pentagon spokesman, Air Force Maj. Ben Sakrisson, said Wednesday that all Guantánamo detainee art is “property of the U.S. government” and “questions remain on where the money for the sales was going.” At the prison, Navy Cmdr. Anne Leanos said in a statement that “transfers of detainee made artwork have been suspended pending a policy review.” Lawyers for the captives discovered the change in recent visits when troops at the 1,500-staff prison inexplicably stopped returning art that had been submitted for inspection and release. Then, according to two attorneys who represent several of the last 41 war-onterror detainees, a commander told general population captives that they would no longer be allowed to give it away. Attorney Ramzi Kassem said one captive was told “art would not be allowed out of the prison.” Now, if a The prison at Guantánamo Bay, Cuba, put its stamp of approval for release on the sail of this model ship built by Yemeni captive Moath al Alwi from paper and other found objects at the Camp 6 communal prison for low value detainees. It was on display on Oct. 25, 2017 at the John Jay College of Criminal Justice as part of an exhibit of art made at the prison by captives past and present. Photo by Carol Rosenberg Not only were the captives no longer to give their lawyers works of art as gifts, but the prison would no longer let the International Red Cross receive artwork for their families, the detainee told Jacob. According to that account, the colonel told captives the change was at the direction of someone not at Guantánamo. An ICRC spokesman had no comment, and invoked the confidential nature of the humanitarian organization’s contacts with the U.S. administration. In contrast, Federal Bureau of Prisons policy lets its inmates mail “arts and hobbycraft” to family, give them to certain visitors and sometimes display it in public space, if it meets the warden’s standard of taste. At Guantánamo, art classes were among the first programs offered to the captives in the later years of the Bush administration as commanders explored ways to distract detainees who had spent years in single-cell lockups from getting into clashes with the guards. Students would be shackled to the floor by an ankle inside a cellblock in Camp 6 and draw still-life displays or copy a picture set up by an Arabic linguist tasked to teach art. One particularly ingenious Yemeni, forever prisoner Moath al Alwi, 40, used castoff cardboard and other found objects to craft increasingly large models of ships he’d only seen in books. The first time he met Jacob, he presented her with a replica gondola. Kassem, a professor at City University of New York School of Law whose legal clinic represents many Guantánamo prisoners, said all the artwork that has come out of the prison “so far has gone through rigorous censorship and contraband review.” Commanders called it the prison’s most popular, best attended program and would display examples, copies of original art, in a prison storage facility for books. Some showed seascapes and scenes from the home countries of the captives because, their attorneys said, the detainees knew it would be forbidden to show life at Guantánamo. Supplies became more bountiful. Captives at times were allowed to create art on the communal cellblocks, and drew their inspiration from elsewhere. At the John Jay exhibit, two different detainees had paintings of the Titanic. The detention center had permitted prisoners to watch the 1997 disaster epic whose theme song is “My Heart Will Go On.” Captive Moath al Alwi at Guantánamo in a photo taken from his 2008 prison profile provided to McClatchy by WikiLeaks. The prison made an X-ray of Alwi’s model ships, Kassem said, before allowing them to leave the island. The Pentagon’s Sakrisson suggested the art was not the captives’ to give away. “Items produced by detainees at Guantánamo Bay remain the property of the U.S. government,” he said in a statement. “The appropriate disposition of this property has been clarified with our staff at the detention facility and will be accounted for according to applicable local procedures in the future.” Until asked by the Miami Herald, Jacob said she hadn’t heard of the possibility that somebody at the Pentagon was alarmed to discover the detainee art was for sale. One former captive, now resettled in Oman, wanted his artwork sold so proceeds could go to his ailing mother in Yemen for costly medicine, she said. Leanos would neither confirm nor deny the prison’s plans to burn the art. Nor would she say how many works of art a captive could keep and how many he would have to designate for destruction. Meantime, “art classes continue to be held each week and detainees have the opportunity to attend,” the prison spokeswoman said. The art program had been such a point of pride at the prison that instructors posted copies of the work on the walls of a library storage facility, and journalists being escorted through the prison were encouraged to photograph it. Two years ago, the prison’s now-defunct newsletter, The Wire, showed an Army officer admiring copies of the “vibrant paintings.” The practice of releasing art from Guantánamo had become so common that prison staff recently printed a form for attorneys to attach to have each work of art reviewed and assigned each piece a tracking number for the clearance process. Jacob, who has represented eight Guantánamo detainees, four now released, said her clients had been using art as a diversion for some time, and had been giving her pieces for years — sometimes as gifts and in other instances to safeguard for fear that the prison would not. In a military raid on the prison in 2013, as a hunger strike spread to about 100 of the then 166 captives, soldiers seized the detainees’ artwork and legal documents from their cells. The legal documents were eventually returned, Jacob said, but the detainees never saw that art again. “What’s next?,” asked detainee attorney David Remes. “Are they going to prohibit detainees from sending poignant letters to their families because someone might display them in an exposition?” WHAT DOES THE FEDERAL BUREAU OF PRISONS DO? For inmates in the United States, the Federal Bureau of Prisons has an Art and Hobbycraft policy that permits prisoners to give away their art to authorized visitors, the number is to be determined by the warden; to mail artwork to relatives or certain approved visitors at the inmate’s expense; and in some instances to sell them through a hobbycraft sales program with prices set by a prison committee. “Use of hobbycraft facilities is a privilege that the warden or staff delegated that authority may grant or deny,” the policy says. “Hobbycraft items must be removed from the living area when completed unless they are approved as personal property.” It adds that the warden “may restrict, for reasons of security and housekeeping, the size and quantity of all products made in the art and hobbycraft program. Paintings mailed out of the institution must conform to both institution guidelines and postal regulations.” And in some instances, the prison can play art critic. “If an inmate's art work or hobbycraft is on public display, the warden may restrict the content of the work in accordance with community standards of decency.” To reduce fire hazards artwork not given or mailed away or sold within 30 days of completion can be declared “contraband.” It does not say how the prison will dispose of the contraband. Army Capt. Jose Izquierdo, then responsible for detainee programs, discusses detainee art with a Guantánamo instructor identified as Adam on Aug. 4, 2009, in a photo distributed by the detention center’s public affairs staff. “The art program provides intellectual stimulation for the detainees, and allows them to express their creativity,” the Department of Defense caption said at the time. SGT MICHAEL BALTZ US ARMY . Published Nov. 17, 2017 Available online at http://hrld.us/2yF0Ck6 Captive, judge oddly agree neither can force lawyer to go to Guantánamo Saudi Abd al Rahim al Nashiri during his military commissions arraignment at the Guantánamo detention center on Nov. 9, 2011. JANET HAMLIN ASSOCIATED PRESS BY CAROL ROSENBERG crosenberg@miamiherald.com GUANTANAMO BAY NAVY BASE, CUBA A war court judge capped three weeks of hearings trying to resolve a stalemate over a resigned civilian defense team Friday by asking the alleged mastermind of the USS Cole bombing whether he wanted his long-serving capital defense counsel to return to court. “I believe he chose to leave this case, and I support him,” Saudi Abd al Rahim al Nashiri said. His death-penalty defense lawyer, Rick Kammen, quit the case because of a secret ethics issue and has twice in recent weeks defied the judge’s order to come to Guantánamo and litigate. team from 2013 to 2015 before returning to civilian life, over Nashiri’s objections. Air Force Col. Vance Spath, the judge, made clear that the decision of whether Kammen and co-counsel Rosa Eliades and Mary Spears would be relieved was not Nashiri’s. Spath framed it as only seeking input from the man awaiting a death-penalty trial for allegedly orchestrating the Oct. 12, 2000, attack on the warship off Aden, Yemen, that killed 17 American sailors. Mizer is a familiar face around the war court. In the summer of 2008, he was the senior military defense counsel at the trial of Osama bin Laden’s former driver, Salim Hamdan, who was convicted of terror charges but with time served was repatriated to Yemen later in the year. The conviction was later overturned. “All the attorneys are free to have their own opinion, and I support them. In other words, I cannot force anyone to come here,” Nashiri told the judge. “Clearly, neither can I,” Spath replied. The defiance has presented a challenge to the authority of the judge, who in a moment of high drama sentenced the Marine general in charge of defense teams to 21 days confinement for refusing to return the three lawyers to the case. Marine Brig. Gen. John Baker is now free, pending review of his sentence, after spending two days in his trailer behind the court at Camp Justice. But in a surprise move, the judge closed out this session of on-again, off-again hearings with a proposed solution. He ordered Harvey Rishikof, who oversees the war court as the so-called Convening Authority, to mobilize a civilian defense attorney named Brian Mizer “to serve as learned counsel in this case,” meaning as the designated death-penalty defender. Mizer, a captain-select in the U.S. Navy Reserve judge advocate general corps, was mobilized to the Nashiri defense Mizer also represented Ammar al Baluchi in the Bush administration era effort to try five men for the Sept. 11, 2001, terror attacks, an aborted capital case. The rules for the war court at the time did not require that each deathpenalty defendant get a learned counsel, so the American Civil Liberties Union funded them. It was unclear Friday whether Mizer meets the American Bar Association definition of a learned counsel. Aside from his support role for Nashiri, he has only handled death-penalty appeals as a civilian at the Air Force appellate level — notably one that got an airman, Andrew Witt, off the U.S. military’s Death Row after a conviction for a 2004 murder of a couple at Robins Air Force Base in Georgia. The case was prosecuted by Spath when the judge was an Air Force major. In ordering the return of Mizer, Spath rescinded his Sept. 23, 2016, decision that found Mizer was not “irreplaceable at this stage of the proceedings.” Spath made clear his effort to mobilize Mizer was to try to keep the case on track toward a trial, even as he tries to decide what to do about Kammen, Eliades and Spears. Mizer knows Nashiri, and worked well with him, according to court testimony. Mizer also has a security clearance and is familiar with the case. Yaroshefsky said she didn’t get the clearance but did get a series of facts from Kammen, including the 2013 discovery of listening devices in the prison’s attorney-client meeting rooms and a caution from Baker that he had lost confidence in the confidentiality of attorney-client conversations at Guantánamo. RELATED: Did someone illegally record legal meetings? If the facts presented to her were wrong, Spath asked, might she change her opinion that Kammen was bound to leave the case. Yaroshefsky said those facts were the basis of her opinion, adding that it’s a “fundamental, a bedrock principle” that a lawyer who can’t have confidential conversations with a client “has no choice but to withdraw.” Hofstra Law School Professor Ellen Yaroshefsky, who specializes in legal ethics. On Friday, Spath questioned an expert on legal ethics by video feed to war court headquarters in Virginia about an opinion she offered that became a basis for the three lawyers leaving the case. Hofstra Law professor Ellen Yaroshefsky, who had lost a federal court bid to quash the war court’s subpoena, was flanked by two attorneys as she explained that Kammen, whom she did not know, sought her out for an opinion over the summer. At the time, Kammen asked whether she’d be willing to get a security clearance to examine classified information confounding his ability to have confidential conversations with Nashiri. Ethics rules about confidential communications and the necessity to withdraw are the same in every jurisdiction, she said, including military commissions. Spath, bound by his obligation to not disclose classified information underpinning Kammen’s problem, offered a hypothetical: What if someone’s listening in on their conversation? Can a client waive the conflict? That would require “informed consent,” Yaroshefsky replied. “Here, because the information was classified, Mr. Kammen could not even inform his client of the reasons and the underlying information so he couldn’t obtain informed consent.” In this 2014 file photo, USS Cole case defense attorney Brian Mizer and death-penalty defense lawyer Rick Kammen study briefs at Andrews Air Force Base before a charter flight to a pretrial hearing at Guantánamo. Photo by Carol Rosenberg Published Nov. 22, 2017 Available online at http://hrld.us/2kvqBsO Pentagon upholds Marine general’s contempt conviction in USS Cole legal dispute Harvey Rishikof moderating a Sept. 16, 2014, Debate on War and the Constitution between attorneys John Yoo and Bruce Fein. CSPAN CAROL ROSENBERG crosenberg@miamiherald.com GUANTANAMO BAY NAVY BASE, CUBA The senior Pentagon official in charge of the war court has upheld a judge’s contempt conviction of the Marine general overseeing defense teams, according to a copy of the decision, which suggests three civilian defense attorneys are still bound to litigate in Guantánamo’s USS Cole case. The official, Harvey Rishikof, also said he is advocating the creation of new “clean” attorney-client meeting spaces, with periodic independent monitoring to assure the alleged terrorists and their attorneys that their conversation is not being monitored. The issue is at the core of the attorneys’ refusal to participate in the case. While upholding the contempt conviction, Rishikof decided that Marine Brig. Gen. John Baker need not serve the remainder of a 21-day sentence of confinement or pay a $1,000 fine. USS Cole case judge Air Force Col. Vance Spath sentenced Baker to both on Nov. 2 for invoking a privilege and refusing to answer the judge’s questions at the war court. Instead, Rishikof, whose title is convening authority of military commissions, will forward the conviction to Baker’s chain of command as an administrative and ethics matter. The general’s civilian attorney, Barry Pollack, said that Baker and his attorneys were considering whether there was a military channel “to challenge the erroneous contempt finding or whether to return to Judge Lamberth to ask him to overturn the contempt finding. “While we are very pleased that the Convening Authority negated the remainder of the sentence of confinement and overturned the fine that had been imposed,” Pollack said by email. “We think the Convening Authority was plainly wrong in concluding that the military judge had the authority to hold General Baker in contempt in the first place. The contempt finding should be reversed.” “I find that imposition of the remainder of the sentence of confinement would have no significant deterrent or rehabilitative effect,” Rishikof wrote Baker, according to a copy of his decision obtained by the Miami Herald on Wednesday. In the short term, that could keep the issue out of federal court. When Baker was confined to his trailer park quarters behind the Guantánamo courthouse, U.S. District Court Judge Royce Lamberth considered a habeas corpus petition brought by civilian lawyers for Baker, who called the general’s detention unlawful. After about 48 hours but before Lamberth could rule, Rishikof suspended the general’s punishment. Marine Brig. Gen. John Baker In his decision, Rishikof recognizes an ongoing, clandestine crisis in confidence in the ability of defense attorneys to hold confidential conversations with their clients at the prison complex — the reason why USS Cole criminal defense attorney Rick Kammen, an experienced death-penalty lawyer, and colleagues Rosa Eliades and Mary Spears asked Baker to permit them to resign in the first place. All three were paid by the Pentagon. “To ensure openness and transparency continue in the future,” Rishikof wrote Baker, “I also intend to recommend to the Joint Detention Group that a ‘clean’ facility be designated or constructed which would provide assurances and confidence that attorney-client meeting spaces are not subject to monitoring. Four entities get to decide Baker’s fate, according to a Pentagon statement: the top-ranking lawyer in the Marine Corps, a two-star general who serves as the staff attorney to the commandant of the Marine Corps; someone at the Pentagon’s General Counsel office; the Department of Defense’s “Standards of Conduct Office,” and someone in the Department of the Navy. “This clean facility would also be checked periodically to ensure compliance with confidentiality expectations by an independent team to ensure it remains free of listening and inappropriate monitoring devices.” In the past, lawyers have discovered listening devices in Guantánamo meeting rooms disguised as smoke detectors; a prosecutor said soldiers mistakenly overheard legal meetings, and then something — the details are classified — happened over the summer to cause Baker to caution defense teams that no meeting site at the base guarantees fundamental attorney-client confidentiality. In specifically seeking that be done by the Joint Detention Group commander, Army Col. Steve Gabavics, Rishikof is bypassing the senior commander of the prison, Rear Adm. Edward Cashman. Gabavics answers directly to the prison commander, independent of the prison’s intelligence, legal and combat camera units. Army Col. Steve Gabavics, the warden, told media on Dec. 10, 2016, during a visit that he would like “the story to be told how great our soldiers are here on the ground.” Photo by Carol Rosenberg A Pentagon statement signaled Rishikof’s support for Spath, who has refused to recognize the resignations of Kammen and the others, by referring to the “attempted resignation of counsel.” That suggests that, as far as the top Pentagon war court official is concerned, Kammen, Eliades and Spears are still attorneys of record on the case. Kammen said by email Wednesday morning that “our position is that General Baker excused us. So our resignations were approved by the only official with a vote. The convening authority has no legitimate role in this decision.” He added that, under the rules for the war court, the role of the convening authority is not that of “a super judge until there is a conviction. He does not have a legitimate role in the conflict between Colonel Spath and General Baker over excusal authority. Indeed his attempt to insert himself into it may be unlawful influence.” Kammen represented former CIA captive Abd al Rahim al Nashiri for nearly a decade. The Saudi is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide bombing of the USS Cole warship off Aden, Yemen, that killed 17 American sailors. Nashiri was represented in this month’s hearings — which focused in part on the death-penalty representation question — by a Navy lieutenant with no capital defense experience who had been practicing law for just five years. Baker, who has recused himself from overseeing the USS Cole defense teams, is represented on the contempt matter by civilian lawyers Pollack and Addy Schmitt and Marine Col. Jonathan Hitesman, the chief defense counsel of the Marines. FULL PENTAGON STATEMENT The Office of Military Commissions (OMC) Convening Authority (CA) has reviewed the contempt proceedings against Brigadier General John G. Baker, United States Marine Corps, Military Commissions Defense Organization. The CA has determined that the findings of the military judge are correct in law and fact. The CA is forwarding the findings and record of proceedings to the appropriate authority overseeing Brig. Gen. Baker’s service as a Judge Advocate within the Department of the Navy, the DoD Standards of Conduct Office, and the DoD General Counsel’s Office, and the Staff Judge Advocate to the Commandant of the United States Marine Corps for an administrative ethics review. The CA is not requiring that Brig. Gen. Baker pay the original $1,000 fine or serve the remaining confinement term, which was initially 21 days. With regard to the underlying security concerns that led to the attempted resignation of defense counsel in the case of United States v. Al-Nashiri, the CA will also recommend to the Joint Detention Group at Guantanamo Bay that a “clean” facility be designated or constructed which would provide continued assurances and confidence that attorney-client meeting spaces are not subject to monitoring, as the commission proceeds. The CA noted that it was within the military judge’s authority to rule upon the defense counsels’ request to withdraw from the case. The presiding judge, US Air Force Colonel Judge Vance Spath, found that there was “no good cause” to withdraw after reviewing both the classified and unclassified information concerning the defense’s motion. During the Oct. 31 proceeding, Judge Spath said, “On 20 September 2017, again after consideration of all the classified and unclassified filings. there wasn’t any basis to find there had been an intrusion into attorney-client communications between this accused and this defense team.” The CA acknowledged that the classified nature of the proceedings have shaped the commission’s proceedings. The declassification of relevant documents concerning this matter needs to be expedited to ensure the now-classified analysis can be shared with the appropriate parties to reinforce the integrity of the process. The CA will work with the necessary declassification authorities to improve this area of concern. Published Nov. 28, 2017 Available online at http://hrld.us/2BrqN39 U.S. military may archive Guantánamo prison art rather than burn it The Guantánamo prison had this painting by Pakistani “forever prisoner” Mohammed Ahmed Rabbani on the wall on Saturday, Dec. 10, 2016, as part of their display of 2016 art projects done by captives. The photo was approved for release by the U.S. military at the U.S. Navy base in southeast Cuba. Photo by Carol Rosenberg BY CAROL ROSENBERG crosenberg@miamiherald.com The idea of incinerating artwork made by wartime captives at Guantánamo Bay has stirred such alarm that the U.S. military is now discussing keeping and cataloging detainee art rather than burning it. Army Col. Lisa Garcia of the U.S. Southern Command, which oversees the 41-captive prison and its 1,500-member staff, said Tuesday that Southcom is recommending to the prison that the staff archive detainee artwork rather than discard it. “We have no record of burning detainee artwork at any time in the past,” Garcia told the Miami Herald, “and we are not planning to start.” A lawyer quoted a captive as saying that military officials at the prison in southeast Cuba announced earlier this month that artwork of detainees who leave the prison would be incinerated. For years the prison had permitted attorneys for the captives to take their clients’ art off the U.S. Navy base — after a security screening that, among other things, sought to analyze it for secret messages. In the instance of some model ships ingeniously made by a Yemeni, troops went so far as to make and study an X-ray of it. Some of the more than 700 captives who were resettled or repatriated were allowed to take some of their artwork with them. But an ongoing exhibit at New York’s John Jay College of Criminal Justice featuring paintings and other works by current and former captives — Ode to the Sea — caught the attention of the Pentagon because the exhibit’s website offered an email address for people “interested in purchasing art from these artists.” Department of Defense officials “were not previously aware that detainee artwork was being sold to third parties,” and ordered the prison to stop releasing it, Pentagon spokesman Air Force Maj. Ben Sakrisson said. He called the artwork property of the U.S. government. He also said there was no effort underway to recover detainee art that had already left the base. The prospect of burning art prompted comparisons of the United States to its enemies. “Let’s see who can destroy works of art and culture faster, ISIS or @DeptofDefense at #Guantánamo,” long-serving detainee attorney J. Wells Dixon tweeted on Nov. 16, after the Miami Herald broke the news of the ban. “Next it will be burning books,” the attorney at the Center for Constitutional Rights also tweeted. An online petition started by the curator of the John Jay exhibit — which as of Tuesday morning had 878 signatures — declared: “Burning art is something done by fascist and terrorist regimes — but not by the American people.” Attorney Ramzi Kassem, whose clients include some of the prison’s most prolific artists, described the idea of archiving rather than destroying the works of art as a cynical move. “They’re still going to redact the art out of existence. They’re just not going to burn it because that looks bad,” he told the Herald. “But if no one gets to see the art, they might as well be incinerating it,” he added. “Guantánamo has always been about dehumanizing its prisoners and erasing them. This is only the latest example.” In contrast, Federal Bureau of Prisons policy lets inmates mail “arts and hobbycraft” to family, give it to certain visitors and sometimes display it in public spaces, if it meets the warden’s standard of taste. Tuesday, the four-decade-old National Coalition Against censorship condemned the new policy as a “violation of the public’s right to access this work and thus fully participate in the political conversation around Guantanamo.” It called the work “documents of historical importance.” Several other arts organizations, including PEN America, the College Art Association and the Media Freedom Foundation joined in the statement. It said the new Pentagon policy of withholding the art from public view “also violates the human rights of the detainees under international norms.” “This baseless policy change uses art as a political football in an effort to prevent these works — and a deeper understanding of those who created them — from informing public discussion of the policies the U.S. government makes in its citizens’ names,” it said. “We condemn this attempt to obstruct the American public discourse essential to a democratic and open society.” At Guantánamo, art classes were among the first programs offered to the captives in the later years of the Bush administration as commanders explored ways to distract detainees who had spent years in single-cell lockup, taunting or throwing filth at their guards. Students would be shackled to the floor by an ankle inside a cellblock and would draw still-life displays or copy a picture set up by an Arabic linguist tasked to teach art. Commanders called it the prison’s most popular, best attended program and would display copies of original art in a prison storage facility for books. Some showed seascapes and scenes from the home countries of the captives because, their attorneys said, the detainees knew it would be forbidden to show life at Guantánamo. Two different paintings on display at the John Jay exhibit showed the Titanic. A lawyer said the detention center had permitted prisoners to watch the 1997 disaster epic whose theme song is “My Heart Will Go On,” a source of inspiration for the captive artists. The art program had been such a point of pride at the prison that instructors posted copies of the work on the walls of a library storage facility, and journalists being escorted through the prison were encouraged to photograph it. Before this month’s prohibition on releases, the lawyers’ practice of clearing works of art had become so common that Guantánamo prison staff recently printed a form for attorneys to submit each piece, and were issued a tracking number. At Guantánamo through the years, documents that were considered classified or containing personally protected information were routinely stashed in an official Department of Defense “Burn Bag” and incinerated. Published Dec. 20, 2017 Available online at http://hrld.us/2lOszRU Guantánamo plan for eavesdropproof legal meeting site has a ‘listening room’ BY CAROL ROSENBERG crosenberg@miamiherald.com Weeks after a Pentagon official asked for an eavesdrop-free attorney-client meeting place at the Guantánamo prison, the Army on Tuesday invited proposals for a pre-fab, hurricane-proof Detainee Legal Center whose specs include a court-approved “listening room” for attorney-client phone calls. Price: Unknown. A sketch and accompanying specs for the new site envision six meeting rooms equipped with security cameras linked to a control room; a place for captives to make or receive telephone calls as well as “control and listening rooms.” It also requires wheelchair accessibility, an apparent acknowledgment that one war court defendant has had multiple back surgeries this year and can walk only short distances. Last month, the Pentagon’s Convening Authority for Military Commissions, Harvey Rishikof, appealed to the chief of the prison guard force to establish a “clean” facility to “provide assurances and confidence that attorney-client meeting spaces are not subject to monitoring.” In the past, lawyers have discovered listening devices disguised as smoke detectors in Guantánamo’s Camp Echo legal meeting rooms; a prosecutor said soldiers mistakenly overheard legal meetings, and then something — the details are classified — happened over the summer to cause Chief Defense Counsel Marine Brig. Gen. John Baker to caution defense teams that no meeting site at the base guarantees attorney-client confidentiality. “This clean facility would also be checked periodically to ensure compliance with confidentiality expectations by an independent team to ensure it remains free of listening and inappropriate monitoring devices,” Rishikof wrote in an 11-page action memo. Attorney David Nevin, who represents the alleged 9/11 plot mastermind, sounded skeptical of the possibility that defense attorneys could have confidence in the integrity of confidential attorneyclient conversations at Guantánamo. “If such a thing can be constructed, then great. I’ve got my doubts,” he said. “In the end you sort of end up being in the position of having to trust people — and these people can’t be trusted. They have an abysmal record of disregarding rights.” Navy Cmdr. Anne Leanos, the spokeswoman for the Joint Task Force that runs the Guantánamo prison, said by email Wednesday that “the JTF does not record or listen to attorney-client privileged conversations.” A listening room is necessary at the new meeting site because the design envisions co-locating “court-established Privilege Team monitors” there, Leanos said, to listen in on phone calls between captives and attorneys who handle detainees’ unlawful detention suits, called habeas corpus petitions. For those calls, lawyers have been told for years that there’s no guarantee of confidentiality because prison staff listen in with the authority to cut the line, if a detainee mentions classified information. In addition, Leanos said, the bureaucracy that reviews uncharged captives’ cases, called the Periodic Review Secretariat, also would use the telephone site, apparently to notify detainees of board decisions. “This facility shall be controlled by the JTF,” the prison spokeswoman said. “Other than the acknowledged Privilege Team monitoring, no listening or recording of attorney-client privilege meetings will occur.” Rishikof’s request did not confirm the defense lawyers’ claims that their confidential meetings are being monitored, a violation of a bedrock legal defense principle of privacy. But he made clear that the proposed new construction is meant to defuse an ongoing crisis in the USS Cole case sparked by the mass resignations of three civilian attorneys on ethical grounds. They declared they cannot ethically represent Abd al Rahim al Nashiri in the death-penalty case because of classified circumstances they are forbidden to describe. The trial judge, Air Force Col. Vance Spath, disputes the existence of an ethical conflict and declared their resignations “null and void.” He also found the chief defense counsel in contempt of the war court for releasing the three lawyers from the case — and ordered the Marine general confined to his trailer park quarters for 21 days. Rishikof suspended the sentence on Day 2 to review it. Then Rishikof proposed the new meeting site in a Nov. 21 decision that upheld Spath finding Baker in contempt of the war court but dismissed the last 19 days of Baker’s sentence and a $1,000 fine levied by the judge. Rishikof decided that jailing and fining the general “would have no significant deterrent or rehabilitative effect,” then focused his comments on the attorneyclient crisis itself. “A matter more imperative than my action in the contempt proceeding remains the underlying security concerns that led to the attempted resignation of counsel in the first place,” Rishikof wrote. “Until the issues of transparency are resolved in an unclassified forum, the case is unlikely to advance, even if new counsel are appointed, because new counsel might well assert identical attorney-client privilege ethical concerns.” Defense lawyers have openly questioned whether even an independent sweep could be trusted in a climate where so much is classified at Guantánamo. The idea of an independent sweep, said Nevin, is to “detect the presence of a signal. But I think it’s possible to turn a signal off, and after the sweep is over, to turn the signal back on.” For now, he said, lawyers operate under the proposition that the privilege is violated and write out sensitive communications during meetings “because you don’t want to speak something that is really important to the defense, to defense strategy because you don’t want your opponent to have access to the thinking.” At the prison, Leanos said the new solicitation invites would-be government contractors to submit price quotes. “Contracts are awarded upon review of quotes,” she said. A sketch that accompanied the Pentagon proposal for a prefab Detainee Legal Center released by the Army on Tuesday, Dec. 19, 2017. Supplemental materials Continuously updated Available online at http://hrld.us/2bSNwEh USS Cole bombing trial guide ABOUT THE TRIAL Next hearing: Jan. 18-24, 2018. Charges: Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel. He is accused of orchestrating al-Qaida’s bombings of the U.S. Navy destroyer USS Cole Oct. 12, 2000 and the French oil tanker HMV Limburg in Oct. 6, 2002. He was arraigned at Guantánamo on Nov. 9, 2011. Prosecutors seek the death penalty. Judge: Air Force Colonel Vance Spath, chief of the Air Force judiciary. The chief war court judge, Army Colonel James L. Pohl, originally handled the case but assigned it to Spath in July 2014. Prosecutors: Army Brigadier General Mark S. Martins, chief prosecutor; former New Orleans-based Assistant U.S. Attorney Mark A. Miller, lead trial counsel; Army Colonel John B. Wells and Air Force Major Michael A. Pierson. Air Force Col. Vance Spath Defense team: Navy Lieutenant Alaric Piette, who has been accepted by Nashiri, and Air Force Major Brett Robinson have received clearances from the intelligence community to sit in the war court. Two other attorneys, Air Force Major Kenitra I. Fewell and Marine Major Tim McCormick, are assigned to the team but awaiting security clearances. Three civilian lawyers, with permission of the chief defense counsel, Marine Brigadier General John Baker, have quit the case due to an ethics conflict. They are: Richard Kammen of Indianapolis, veteran death penalty defender with “learned counsel” status; Department of Defense lawyers Rosa Eliades and Mary Spears, both civilians. The judge has declared their resignations “null and void” and considers them attorneys of record. Navy LT. Alaric Piette ABOUT ABD AL RAHIM AL NASHIRI Born: Jan. 5, 1965 in Mecca, Saudi Arabia. Captured: October 2002 in Dubai, the United Arab Emirates, which held him initially then handed him over to the CIA. Detention: He was held in five secret CIA overseas prisons, including one colocated at the detention center at Guantánamo in 2003 and 2004, before he was brought back to the U.S. Navy base in southeast Cuba in September 2006, according to the public portion of the Senate Select Committee on Intelligence “Torture Report.” He is one of three former CIA captives the U.S. spy agency has admitted to waterboarding during his secret custody. The agency also made video recordings of him undergoing secret “enhanced interrogation techniques” but destroyed the recordings in 2005. Torture: Court documents and the Senate report show the CIA force-fed him Ensure “rectally” for going on a hunger strike in May 2004. He also was alternately kenneled like a dog in a cage and hung nude by his arms to the point where a medical officer worried his arms would be dislocated. Other techniques used on him during interrogations included a CIA officer revving a cordless drill Nashiri’s head while he was blindfolded, cocking a pistol near his head, threatening to sexually abuse his mother and, according to a 2016 account by one of his interrogators using a “stiff-bristled brush to scrub his ass and balls and then his mouth and blowing cigar smoke in his face until he became nauseous.” Health: A U.S. military panel concluded in 2013 that he suffers depression and Post Traumatic Stress Disorder but is competent to stand trial. At the request of his lawyers, the case judge ordered an MRI of his brain before the trial could begin. Profession: Told a 2007 military review that he was a merchant in Mecca who by 19 was a millionaire. CIA profile released by the White House in 2006 said he was al-Qaida operations chief in the Arabian Peninsula at time of his capture. Paramilitary background: CIA profile said he fought in Chechnya and Tajikistan and trained at the Khaldan camp in Afghanistan in 1992. ultimately claiming the lives of 17 Americans. ABOUT THE VICTIMS They are represented at the hearings by shipmates and family of the 17 Americans killed that day: ▪ Hull Maintenance Technician Second Class Kenneth Eugene Clodfelter, 21, of Mechanicsville, Virginia. ▪ Electronics Technician Chief Petty Officer Richard Costelow, 35, of Morrisville, Pennsylvania. ▪ Mess Management Specialist Seaman Lakeina Monique Francis, 19, of Woodleaf, North Carolina. ▪ Information Systems Technician Timothy Lee Gauna, 21, of Rice, Texas. ▪ Signalman Seaman Cherone Louis Gunn, 22, of Rex, Georgia. Saudi Abd al Rahim al Nashiri during his Nov. 9, 2011 military commissions arraignment at the U.S. Navy base at Guantánamo Bay, Cuba, in a sketch by artist Janet Hamlin approved for release by a court security officer. ABOUT THE USS COLE The 8,300-ton warship is based in Norfolk, Virginia. It was commissioned, a formal ceremony, at Port Everglades in 1996. It was on a refueling stop in October 2000 when two al-Qaida suicide bombers drove a bomb-laden boat into the side, killing themselves and ▪ Seaman James Rodrick McDaniels, 19, of Norfolk, Virginia. ▪ Engineman Second Class Marc Ian Nieto, 24, of Fond du Lac, Wisconsin. ▪ Electronics Warfare Technician Second Class Ronald Scott Owens, 24, of Vero Beach, Florida. ▪ Seaman Lakiba Nicole Palmer, 22, of San Diego. ▪ Engineman Fireman Joshua Langdon Parlett, 19, of Churchville, Maryland. ▪ Fireman Patrick Howard Roy, 19, of Keedysville, Maryland. ▪ Electronics Warfare Technician First Class Kevin Shawn Rux, 30, of Portland, North Dakota. In addition, a Bulgarian crewmember, Atanas Atanasov, 38, was killed in the Limburg bombing. ▪ Mess Management Specialist Third Class Ronchester Manangan Santiago, 22, of Kingsville, Texas. ABOUT THE WAR COURT ▪ Operations Specialist Second Class Timothy Lamont Saunders, 32, of Ringgold, Virginia. ▪ Fireman Gary Graham Swenchonis Jr., 26, of Rockport, Texas. The Pentagon has built a $12 million Expeditionary Legal Complex with a snoop-proof courtroom capable of trying six alleged coconspirators before one judge and jury, with an original vision of a six-defendant Sept. 11 terror plot conspiracy trial. Five men are charged in that case. Media and other observers are sequestered in a soundproofed room behind thick glass, at the rear, and hear the court audio feed on a 40-second delay. The judge at the front and a court security officer have mute buttons to silence the feed to the observers' booth — if they suspect someone in court could spill classified information. Pentagon workers have installed a curtain inside the spectators gallery to wall off victims, chosen by lottery, from the other observers at the back of the courtroom. President Barack Obama’s plan to close the detention center at Guantánamo, released Feb. 23, 2016, put costs of running the military commissions system at $91 million a year. Mess Management Specialist Seaman Lakeina Monique Francis. ASSOCIATED PRESS ▪ Ensign Andrew Triplett, 31, of Macon, Mississippi. ▪ Seaman Craig Bryan Wibberley, 19, of Williamsport, Maryland. Later that year, Nashiri’s filed a legal motion with the judge seeking permission for the Saudi to spend hearing nights at the compound, in a holding cell outback. They argued he suffered on the commute between the court and the classified Camp 7 prison. The judge denied that motion. At left, resigned defense attorney Richard Kammen at Guantánamo’s Camp Justice on June 14, 2013, sporting a kangaroo lapel pin. At center and right, in courtesy photos, are attorneys Rosa Eliades and Mary Spears. PAST COVERAGE ▪ Dec. 3, 2017: Marine general asks federal court to overturn his contempt conviction ▪ Nov. 22, 2017: Pentagon upholds Marine general’s contempt conviction in USS Cole legal dispute ▪ Nov. 17, 2017: Captive, judge oddly agree neither can force lawyer to go to Guantánamo ▪ Nov. 16, 2017: New York federal judge declines to quash Guantánamo subpoena ▪ Nov. 14, 2017: The Pentagon paid $370,000 to rent an MRI for the war court. It doesn’t work. ▪ Nov. 13, 2017: Navy SEAL turned lawyer defending alleged USS Cole bomber ▪ Nov. 10, 2017: Law professor seeks federal court protection against forced video testimony to Guantánamo ▪ Nov. 8, 2017: USS Cole’s deck was scene of ‘chaos, panic’ after al-Qaida’s bombing ▪ Nov. 7, 2017: Pentagon blames glitch for use of Gitmo war court kill switch ▪ Nov. 4, 2017: Federal judge blocks military judge from having U.S. marshals seize defense attorney ▪ Nov. 3, 2017: Pentagon official frees Marine general confined to quarters at Guantánamo. For now. ▪ Nov. 3, 2017: Lone Navy defender refuses to question witness in USS Cole hearing ▪ Nov. 2, 2017: Resigned USS Cole case lawyers to defy war court judge’s order — again ▪ Nov. 2, 2017: Federal judge orders USS Cole case to continue after defense lawyers quit ▪ Nov. 1, 2017: Air Force judge sends Marine general lawyer to 21 days confinement for disobeying orders ▪ Oct. 31, 2017: Guantánamo judge orders contempt hearing to try to end defense revolt at war court ▪ Oct. 30, 2017: USS Cole prosecutors want no-show civilian attorneys found in contempt of war court. ▪ Oct. 29, 2017: Civilian lawyers defy judge’s order to appear at war court ▪ Oct. 23, 2017: Defense lawyers quit. Not so fast, says war court judge, who orders them to Guantánamo ▪ Oct. 16, 2017: Supreme Court won’t hear USS Cole case challenge to Guantánamo war court ▪ Oct. 14, 2017: Will the Obama-era war court prosecutor stay on? No word yet. ▪ Oct. 13, 2017: Guantánamo’s USS Cole death-penalty case in limbo after key defense lawyer quits ▪ Oct. 2, 2017: Guantánamo gets MRI on four-month deployment, for one detainee? ▪ Aug. 1, 2017: Admitted terrorist testifies behind closed doors at Guantánamo ▪ March 15, 2017: Judge setting USS Cole bombing trial for 2018 ▪ March 14, 2017: USS Cole judge declares media transparency challenge moot ▪ March 13, 2017: Emotionally drained crew kept USS Cole afloat while FBI collected evidence ▪ March 10, 2017: Going to Guantánamo war court makes USS Cole defendant want to puke ▪ March 9, 2017: Saudi plea deal to test Trump’s call for halt of Guantánamo transfers ▪ March 7, 2017: Guantánamo judge orders CIA testimony on destroyed ‘Black Site’ videotapes ▪ March 6, 2017: War court debates whether CIA is monitoring medical care of captive it waterboarded ▪ Feb. 10, 2017: Trump Justice Department delivers CIA ‘Torture Report’ to federal court ▪ Dec. 29, 2016: Federal judge preserves CIA ‘Torture Report’ after war court wouldn’t do it ▪ Dec. 16, 2016: Lawyer says USS Cole trial could start in 2018 ▪ Dec. 15, 2016: Media appeal averts closed USS Cole case testimony ▪ Dec. 14, 2016: Guantánamo lawyer: We need to hear from the torturers ▪ Dec. 13, 2016: USS Cole case defenders seek data on death of Kuwaiti man killed by a drone attack ▪ Nov. 3, 2016: Prosecutor orders special probe of war court defense teams ▪ Oct. 19, 2016: Stubborn witness testifies at Guantánamo by video after night in Virginia jail ▪ Oct. 18, 2016: War court judge has U.S. Marshals seize no-show war court witness ▪ Oct. 16, 2016: Alleged USS Cole bombing mastermind wants war court sleepover ▪ Sept. 9, 2016: ‘Don’t forget the Cole,’ bombing survivor implores after Guantánamo hearings ▪ Sept. 6, 2016: After 18-month hiatus USS Cole trial participants return to Guantánamo ▪ June 30, 2016: USS Cole case judge orders first Guantánamo hearing since 2015 Published Feb. 8, 2017 Available online at http://hrld.us/2kInx8s Alleged mastermind tells Obama 9/11 was America’s fault An excerpt from Khalid Sheik Mohammed's letter to former President Barack Obama. MiamiHerald graphic BY CAROL ROSENBERG crosenberg@miamiherald.com The alleged mastermind of the Sept. 11 terror attacks wrote former President Barack Obama in a long suppressed letter that America brought the 9/11 attacks on itself for years of foreign policy that killed innocent people across the world. “It was not we who started the war against you in 9/11. It was you and your dictators in our land,” Khalid Sheik Mohammed, 51, writes in the 18-page letter to Obama, who he addressed as “the head of the snake” and president of “the country of oppression and tyranny.” It is dated January 2015 but didn’t reach the White House until a military judge ordered Guantánamo prison to deliver it days before Obama left office. In it, the man on trial for his life at Guantánamo as the alleged architect of the hijackings that killed nearly 3,000 people in New York, the Pentagon and a Pennsylvania field adds that he neither fears a death sentence nor life in a prison cell. He also appends a 50page manuscript he wrote, “The Truth About Death,” illustrated with a picture of a noose. “I will be happy to be alone in my cell to worship Allah the rest of my life and repent to Him all my sins and misdeeds,” he says in the letter that he wrote at the U.S. Navy base in Guantánamo Bay, Cuba. “And if your court sentences me to death, I will be even happier to meet Allah and the prophets and see my best friends whom you killed unjustly all around the world and to see sheik Osama bin Laden.” The Kuwait-born Pakistani citizen of Baluch ethnic background, lists a long litany of U.S. overseas interventions — from Iraq and Iran to Vietnam and Hiroshima — to justify the worst terror attack on U.S. soil. But he is particularly focused on the cause of the Palestinians, highlights civilian suffering and accuses Obama of being beholden to special interests, notably Israel and “the occupier Jews.” Israel gets 39 mentions while Osama bin Laden gets a dozen, including once to excoriate Obama for the mission that hunted down and killed the founder of the al-Qaida movement for the 9/11 attacks. Mohammed ridicules Obama — “a smart attorney, well acquainted with human rights” — who “can kill his enemy without trial and throw his dead body into the sea instead of giving him to his family or respecting him enough as a human being to bury him.” The former al-Qaida operations chief wrote the letter “in the context of violence in Gaza and the occupied territories,” said Mohammed’s deathpenalty defense attorney, David Nevin. He called it “the primary motive for the drafting of the letter” and declined to say whether the client or his legal staff typed it up. Mohammed began drafting the letter during 2014 when Israel had an offensive in the Gaza Strip that claimed civilian lives, according to his military attorney, Marine Maj. Derek Poteet. “He’s upset at U.S. foreign policy and he plainly perceives that the United States has signed a blank check to Israel,” Poteet said. In the opening paragraph Mohammed tells Obama: “Your hands are still wet with the blood of our brothers and sisters and children who were killed in Gaza.” Mohammed is one of five men in pretrial hearings at the Guantánamo war court that accuses them of engineering the Sept. 11, 2001 hijackings, and seeks their execution if convicted. The man was hidden for 3 1/2 years in the CIA’s secret prison network, where he was waterboarded 183 times and subjected to other brutal interrogation techniques. “I will never ask you, or your court for mercy,” he writes. “Do what you wish to do, my freedom, my captivity and my death is a curse on all evil doers and tyrants.” Mohammed spent about three years in North Carolina in the 1980s. He attended Chowan College in Murfreesboro for one semester and then transferred to North Carolina A&T in Greensboro, where he earned an engineering degree in 1986. Prison officials refused to deliver the letter, a position backed by prosecutors who said it should be suppressed as propaganda. His Pentagon-paid defense attorneys asked the judge to intervene in September 2015, arguing Mohammed’s First Amendment right to petition the president. The Army judge in charge of the trial, Col James L. Pohl, eventually ruled that the commander in chief could receive it, virtually as the Obamas were packing out of the White House — and the public could see it a month later, once President Donald J. Trump moved in. “What’s so troubling to me is it took so long to get approval, even to get this litigated,” Nevin said, reminding that the defense team started out asking the military, “How do we provide this to the president of the United States?” ▪ Endorses Al-Jazeera. “Don’t let Fox, CNN, BBC, or American and pro-Israeli channels cover your eyes ... Their main task is brainwashing. They are experts at lying and distorting the facts to achieve their masters’ ends.” ▪ Invokes “the blood of the innocents your drone attacks killed in Waziristan, Yemen, Iraq, Libya, Afghanistan, Somalia, and elsewhere around the globe.” ▪ Singles out “the CIA, the FBI, the Jewish community of Brooklyn, the merchants of AIPAC, the war profiteers, to pro-Israeli militias and the ChristianZionist Lords” for condemnation, as well as “the Christian right wing and the followers of Jerry Falwall, Gary Bauer, Pat Robertson and John Hague.” ▪ Says “Allah aided us in conducting 9/11, destroying the Capitalist economy, catching you with your pants down, and exposing all the hypocrisy of your long-held claim to democracy and freedom.” The theme is not new. In October 2012, when he was first allowed to wear a hunting vest to the war court he scolded the judge with this: “Your blood is not made of gold and ours is made out of water. We are all human beings.” The Herald obtained the document from Mohammed’s lawyers after a judicially ordered 30-day review period expired. Pohl ruled on Jan. 6 that there was no “legal basis for continued sealing of the letter’s contents” but gave the prison an extra month to scrub it of sensitive information before releasing it on the Pentagon war court website whose motto is “Fairness * Transparency * Justice.” A spokesman at the Pentagon could not explain Wednesday why the document was not yet posted on the website. The Herald asked Obama’s office on Tuesday whether the former president had read the letter. It has yet to respond. ADDITIONAL READING: ▪ Jan. 16, 2017: Alleged 9/11 plotter’s letter reaches White House ▪ Jan. 11, 2017: Judge orders prison to deliver alleged 9/11 plotters letter ▪ Oct. 6, 2015: Guantánamo prosecutor calls accused Sept. 11 plotter’s letter ‘pure propaganda’ ▪ Sept. 7, 2015: Accused Sept. 11 plotter seeks judge’s help delivering letter to Obama ▪ Aug. 15, 2014: Accused Sept. 11 mastermind has written to Obama: Will U.S. military let letter out of Guantánamo?