Many Say He's the Least Qualified Lawyer Ever to Lead a Guantánamo Case. He Agrees.

Though he was trained to hunt down the most dangerous terrorists in the world, nothing prepared him to defend someone accused of carrying out terrorist acts.

“On another day, I could have easily taken my client out. I know it seems like a contradiction,” Piette said as he stood in the tropical glare outside the dust-colored court building here, which is ringed by razor wire and sniper netting. “But in a lot of ways being a SEAL and being a defense attorney — you’re doing the same thing. You’re defending the Constitution.”

No lawyer with so little experience has ever led a case before the tribunal, and in fact, regulations prohibit it. That the al-Nashiri case is going forward at all has led many to question whether the tribunals can offer a fair trial, and has cast a harsh light on the already troubled military system, which so far has produced no convictions at trial, despite years of effort.

President Donald Trump has doubled down on Guantánamo, signing an order last week to keep the prison open and vowing in his State of the Union address to send more prisoners to the island. But the tribunals at Guantánamo have repeatedly sputtered, dragging out for more than a decade cases that were originally envisioned to be so speedy that they were set in temporary buildings and tents.

As further evidence of the system’s dysfunction, Defense Secretary Jim Mattis fired the top official overseeing the tribunals, Harvey Rishikof, as well as his chief of staff, on Monday. A Pentagon spokesman said the change in leadership, which was first reported by The Miami Herald, would not affect continuing cases.

The al-Nashiri case began in 2011 and is still churning through pretrial hearings. So are the trials for those accused of being Sept. 11 collaborators. The judge for the al-Nashiri case has said he would like to begin picking a military jury by December, which puts the schedule of the case in doubtl.

In death penalty cases, the military tribunal rules require so-called learned counsel who have tried capital cases before. The team’s former lead counsel had tried 38. Piette has tried none. But the judge in the case has decided to move forward with only the lieutenant — a move that has alarmed a number of legal scholars.

“He doesn’t come close to being qualified,” said Ellen Yaroshefsky, a professor of legal ethics at Hofstra University. “So a death penalty case is basically going forward without a lawyer. If that is what we think passes as a court system, we’re in big trouble.”

One of the people questioning the lieutenant’s decision to stay is the lieutenant himself. His presence in court allows the case to move forward without experienced counsel.

“That is clearly a problem, because there is no way I qualify as learned counsel,” he said. “But leaving the client without a lawyer to protect his rights could be even worse. I don’t know if I’ve done the right thing, but I don’t think I really had a choice.”

The dispute that prompted the resignations of the rest of Piette’s team started this summer when the defense learned that conversations with their client — conversations that are typically strictly confidential — were likely being monitored by the government.

The defense team searched the detention block room at Guantánamo where they met with al-Nashiri and spotted something that to them confirmed government monitoring. The original lead defense attorney, Richard Kammen, said in an interview that what he found was classified, so he was barred from disclosing it, even to his client.

He objected to the court, but the judge in the case ruled this fall that the client had only limited rights to confidentiality. Kammen quit the case in protest, saying it was ethically impossible to stay. Two assisting lawyers followed.

“We were gobsmacked,” said Kammen, who for years has jousted with the military tribunal, making his appraisal of it clear by wearing a kangaroo pin on his court jacket. “Under the law, we had to quit. We had no choice.”

Both the judge and prosecutors were furious at the exodus, which threatened to derail an already slow-moving case. The lead civilian prosecutor, Mark Miller, denounced the defense for what he called “a scorched-earth strategy to obstruct the proceeding by any means, however frivolous, however cynical.”

The judge, Air Force Col. Vance Spath, ordered the defense back to court in October. When they refused, he ordered a Marine general in charge of the defense to force them back. The general also refused, and was confined in a trailer next to the razor wire-ringed court in November for contempt. At the most recent hearings in late January, Spath was still trying to compel the lawyers to appear, so far without success.

In a federal court, appointing a new learned counsel would be straightforward, but Guantánamo is no federal court. Few lawyers qualified to take death penalty cases have both the requisite top secret security clearance and the willingness to work with the special military tribunal rules created by Congress in 2009 for Guantánamo, said Navy Cmdr. Brian Mizer, who in the past has represented multiple detainees at the tribunals.

“There is a perception that the tribunals are like tilting at windmills,” he said. “Many lawyers don’t want to go near it.”

Mizer and others said it could take at least a year for a new lawyer to be appointed and get caught up on the case.

Experienced counsel in a case like al-Nashiri’s is critical, Mizer said, because the thicket of charges stemming from a series of attacks is complicated further by evidence gathered through years of torture at CIA black sites.

But after Kammen left, Spath ruled that learned counsel were required only “to the extent practicable,” and pushed forward with pretrial hearings with just the lieutenant at the helm.

Piette, who grew up in Texas and Wisconsin, said he was not easily swayed by long odds. He enlisted in the Navy right after high school in 1997, inspired by his grandfather, who had been a decorated commando during World War II. Despite limited swimming skills and no experience with weapons, he soon graduated from the notoriously punishing SEAL selection course in a year when nearly 90 percent of the class dropped out.

He was assigned to a cold-weather warfare team and deployed to Kosovo.

After the USS Cole and the World Trade Center were attacked, he thought the team would be sent to hunt terrorists. Instead he was deployed again to Eastern Europe. He finished his enlistment without seeing combat. With a young family at home and a growing frustration at the lack of action, he left the Navy at the end of 2003.

For years after, he said, he was dogged by regret. SEAL teams began deploying to Iraq and Afghanistan. Three friends were killed in combat. Men he knew shot Osama bin Laden, he said. He worried he had fumbled his chance to make a difference.

That changed at Georgetown University’s law school, where he started his degree program thinking he would become a prosecutor, but in his final year found the criminal defense clinic. Raised Roman Catholic, he described representing destitute, often mentally ill clients as the moment he really understood the teachings of Jesus.

“It was the first time since the SEALs I found something really meaningful,” he said. “I was standing between a person and the system. Everything I had learned about training and preparation and perseverance — it clicked.”

After graduating in 2012, he spent five years as a Navy lawyer, working criminal cases at Naval Station Norfolk in Virginia. Last April he was hired to work on the al-Nashiri case. He had barely started when his whole team quit.

In January, the judge repeatedly fumed at the missing defense team, calling it a strategic tactic intended to undermine the trial.

“Never have I seen such open and notorious rejection of orders from a court,” the judge told the court.

Piette stood before him, respectful but unwavering. As a SEAL member, he said later, he was used to being yelled at.

During hearings over several days in January, the prosecution called witnesses and moved to introduce photos and bags of blast fragments from the attack, which killed 17 sailors. Piette sat silently, spinning his pen in seeming frustration, but passed up dozens of chances to object and cross-examine.

He felt staying nearly silent was the only effective strategy for his client. Over the course of two days, the judge asked 37 times for the defense to comment on the admission of evidence. Each time the lieutenant stood and responded, “Defense takes no position other than to object to these proceedings continuing without learned counsel.”

Though he wanted to argue at length, challenging the very idea that evidence could be admitted without a jury present, he said he knew it would be unethical to even try, and could sink the case. He hoped his refusal to participate would preserve an issue for appeal. Whether it will upend the trial or be a mere footnote in the tribunals will likely not be known for years.

The prosecution declined requests for an interview, but in court, an Air Force major on the team denounced Piette’s objections, calling them “shameless, disingenuous and conceited.”

The same day, though, Abbe Smith, a law professor at Georgetown who taught Piette criminal defense, put his photo up in her ethics class as an example of a “courageous and ethical representation.”

“He’s pretty gutsy. This legal train is in motion and he steps out in front to protect his client,” she said in an interview. “I don’t know that all lawyers would do that. I guess in a way the ethics of the battlefield and the ethics of defense are the same in that way. Both force you to make hard moral decisions and rely on strict professional rules.”

Kammen said discussions with Piette about staying were “complicated” and he was not convinced his most junior lawyer did the right thing.

“If we are obligated to withdraw, isn’t he?” Kammen said. “He’s a fine lawyer, but this is way beyond what he can do.”

The New York Times

Many Say He's the Least Qualified Lawyer Ever to Lead a Guantánamo Case. He Agrees.

By many assessments, including his own, the lawyer, Navy Lt. Alaric Piette, is completely unqualified to represent Abd al-Rahim al-Nashiri, a Saudi man accused of orchestrating the bombing of the American destroyer USS Cole in 2000.

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