After nearly two years of litigation, we are pleased to have reached a favorable resolution in a constitutional challenge involving the U.S. Naval Station Guantanamo Bay. Schnapper-Casteras PLLC represents Mr. Richard Kammen, a prominent member of the Indiana Bar, who was appointed to serve as a lead defense counsel in Guantanamo and who faced arrest after he uncovered a concealed microphone in a meeting room for attorneys.
Mr. Kammen’s legal battle involves a troubling and extraordinary set of facts, which underscore how far the system in Guantanamo has strayed from basic principles of justice. In 2017, Mr. Kammen and his colleagues discovered a listening device, hidden in a smoke detector in a room reserved for attorney-client meetings. Mr. Kammen raised this issue and other ethical concerns with U.S. Marine Corps Brigadier General John G. Baker and an outside legal ethics expert. The expert informed Mr. Kammen that, in order to adhere to the rules of professional conduct, he had no choice but to withdraw from his legal duties in Guantanamo. General Baker expressly approved of Mr. Kammen’s withdrawal. However, the military commission official overseeing the matter at the time, Col. Vance Spath, responded by pursuing the lawyers themselves, civilian and military alike. Col. Spath sentenced General Baker to a term of confinement and threatened to have Mr. Kammen and his co-counsel arrested, to force them to continue work in Guantanamo, and/or to bring them to Virginia to hold them in contempt.
In November 2017, Mr. Kammen filed a petition in the Southern District of Indiana against the U.S. Secretary of Defense and military commission officials seeking to prevent his imminent arrest. Following an emergency hearing, the District Court suspended any and all warrants and travel requirements held against Mr. Kammen. Mr. Kammen subsequently amended his petition, advancing claims under the First Amendment, due process under the Fifth and Fourteenth Amendments, and Sixth Amendment. The U.S. Department of Justice, while not disputing most of the facts, argued that a federal court could not hear the case because Mr. Kammen was jurisdictionally equivalent to an alien, non-citizen enemy combatant. Although the Justice Department ultimately acknowledged the existence of the concealed microphone, it sought to downplay it as a “legacy” device. Separately, General Baker and the other civilian lawyers filed lawsuits against the Government (represented by Jenner & Block LLP, and Michel Paradis et al., respectively).
The record is clear: every federal court to have reached the merits on this episode has ruled against the Government. In 2017, the U.S. District Court for the District of Columbia granted General Baker’s habeas petition and vacated his conviction for contempt. In April 2019, the U.S. Court of Appeals for the D.C. Circuit issued a sweeping opinion, tossing out years’ worth of Col. Spath’s military commission rulings in light of revelations that he had engaged in conduct giving rise to the appearance of judicial bias. In its holding, the D.C. Circuit took the remarkable step of praising the conduct of Mr. Kammen and his co-counsel:
“Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in this case, save for [the] defense counsel, all elements of the military commission system—from the prosecution team to the Justice Department to the CMCR to the judge himself— failed to live up to that responsibility.”
The D.C Circuit opinion effectively nullified Col. Spath’s order that Mr. Kammen return to Guantanamo or else be held in contempt. In May 2019, Mr. Kammen, still living under the specter of being arrested or forced back to Guantanamo, urged the Southern District of Indiana to take judicial notice of the D.C. Circuit’s ruling. In July 2019, the Department of Justice confirmed that it would “not seek further review” of the D.C. Circuit ruling and acknowledged that the decision was dispositive in the Indiana litigation. In August 2019, Mr. Kammen and the Justice Department agreed to resolve the Indiana case by voluntarily dismissing it, a request the District Court granted yesterday.
In light of yesterday’s resolution, Mr. Kammen stated that he felt “vindicated by the result and relieved that his co-counsel no longer have to live under the cloud of uncertainty.” Mr. Kammen added that:
“JP [Schnapper-Casteras] was instrumental in the success we had convincing the military and civilian courts that government misconduct directly required me to be excused as the lawyer for Abdul Rahim al-Nashiri. More importantly, his wise counsel and aggressive litigation, helped persuade the federal judge in Indiana that the government could not have me arrested and forced to represent al-Nashiri when that would have been both illegal and unethical.”
JP Schnapper-Casteras, who represented Mr. Kammen alongside Jessie A. Cook and Robert W. Hammerle, remarked: “In the United States of America, we should extol attorneys for acting ethically — not arrest them.”