United States v. Al-Nashiri, 374 F. Supp. 3d 1190

Background

Abd al‑Rahim al‑Nashiri, charged before a military commission with capital offenses, had long‑standing learned counsel (Richard Kammen) and two assistant civilian defense counsel (Spears, Eliades). Kammen and the two SDCs sought to withdraw in 2017 citing ethical concerns that the government had intruded on attorney‑client confidentiality (including discovery of legacy microphones and other alleged incidents).
The Chief Defense Counsel (CDC) granted the SDCs’ requests to be excused; the military judge concluded the CDC’s decision required judicial review and ordered the SDCs to remain counsel of record and to appear. The CDC and SDCs refused to comply.
The military judge found no evidence that privileged communications involving al‑Nashiri had been compromised, ordered testimony and subpoenas, and held the CDC in contempt for refusing to rescind the excusals. The CDC challenged that contempt in federal court.
With learned and assistant counsel refusing to participate and replacement learned counsel not in place, the military judge abated the trial indefinitely on February 16, 2018. The government filed an interlocutory appeal under 10 U.S.C. § 950d.
The Court of Military Commission Review (CMCR) vacated the abatement, ruled that the SDCs remained counsel of record and must comply with the military judge’s orders, held that the CDC may make an initial excusal determination but the military judge must review and find good cause on the record before excusal after appearance, and held there is no absolute statutory right to learned counsel — only "to the greatest extent practicable."

Issues

Issue	Appellee (Al‑Nashiri) Argument	Appellant (Government) Argument	Held
Authority to excuse counsel after appearance	CDC legitimately excused SDCs for good cause (intrusions); their withdrawal should stand	Military judge or appellate court should be able to review CDC excusal; military judge must retain control	CDC can make the initial excusal decision, but after counsel has appeared the military judge must review the record and find good cause before excusal; CDC lacked authority to unilaterally terminate counsel of record
Whether good cause (intrusion) existed to permit SDC withdrawal	Intrusions over years (microphones, IT access, mail screening) made continued representation unethical — good cause exists	Record lacked evidence that privileged communications involving al‑Nashiri were compromised; prejudice must be shown	No adequate evidence in the record showed intrusion affecting al‑Nashiri; the military judge did not err in finding no good cause on the record; prejudice must be shown before relief
Effect of SDC refusal and duty to obey judicial orders	SDCs had ethical duty to withdraw if representation would violate rules; they could not be forced to continue	Lawyers who appear before the commission must obey military judge orders; remedy for errors is appeal	Counsel of record must obey military judge orders absent proper withdrawal approval; an attorney ordered to continue must comply and seek relief on appeal
Right to learned counsel in capital military commission proceedings	Al‑Nashiri argued for an absolute right to learned counsel at all stages	Government: statute entitles an accused to learned counsel "to the greatest extent practicable" — not absolute	Right to learned counsel is not absolute; it exists only "to the greatest extent practicable." Factors (critical stage, qualifications of remaining counsel, delay caused, other circumstances) guide the practicability assessment

Key Cases Cited

Weatherford v. Bursey, 429 U.S. 545 (1977) (framework for assessing government intrusion and need to show prejudice)
Caldwell v. United States, 205 F.2d 879 (D.C. Cir. 1953) (earlier D.C. Circuit precedent discussed on per se reversal for intrusion)
Coplon v. United States, 191 F.2d 749 (D.C. Cir. 1951) (precedent on unauthorized monitoring of privileged communications)
Marbury v. Madison, 5 U.S. 137 (1803) (judiciary’s authority to "say what the law is")
Boumediene v. Bush, 553 U.S. 723 (2008) (judicial review and protections even in national‑security contexts)
United States v. Kelly, 790 F.2d 130 (D.C. Cir. 1986) (prejudice requirement and application of Weatherford factors)
United States v. Moncier, 571 F.3d 593 (6th Cir. 2009) (trial counsel must obey court orders; remedy is appeal)
United States v. True, 28 M.J. 1 (C.M.A. 1989) (abatement tantamount to dismissal; appealability standard in military practice)