David Tatel D.C. Circuit Judges David Tatel, right, and Sri Srinivasan, left, confer during a reenactment of a historic case. (Photo: Diego M. Radzinschi)

Two civilian lawyers who had been ordered to continue representing the alleged mastermind of the USS Cole bombing despite withdrawing amid claims of improper government monitoring of their client conversations won relief Tuesday from a federal appellate court.

A Jenner & Block team, representing lawyers Mary Spears and Rosa Eliades, had filed a writ of mandamus in the U.S. Court of Appeals for the D.C. Circuit.

In the trial of Abd al-Rahim al-Nashiri, Spears and Eliades challenged military commission orders by Air Force Col. Vance Spath and the U.S. Court of Military Commission Review. Those orders said the lawyers had a continuing obligation to represent al-Nashiri despite their ethical concerns and approval of their withdrawal by Brigadier General John Baker, chief defense counsel of the Military Commissions Defense Organization.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said Spath in the death penalty proceedings against al-Nashiri “cast an intolerable cloud of partiality” over his judicial conduct in the case after he applied for a job as a federal immigration judge and kept that act from al-Nishiri and his defense counsel.

The panel, in an opinion by Judge David Tatel, ruled that al-Nishiri was entitled to relief on his own writ of mandamus. The alleged bomber had asked the court to dissolve the current military commission entirely because of Spath’s apparent conflict and bias. But the panel, instead, directed the vacatur of all orders entered by Spath after Nov. 15, 2015, the date of his application for the immigration judge job, as well as all CMCR decisions reviewing those orders—including the order against Spears and Eliades.

Spath “affirmatively called the Justice Department’s attention to his handling of Al-Nashiri’s case, making his performance as presiding judge a key point in his argument for employment,” Tatel wrote.

The panel’s decision, vacating three years of orders, is a huge blow to the military commission proceeding.

Tatel, joined by Judges Judith Rogers and Thomas Griffith, added, “In ordering such relief, we fully recognize the burden the writ will place on the government, the public, and Al-Nashiri himself. Despite these costs, however, we cannot permit an appearance of partiality to infect a system of justice that requires the most scrupulous conduct from its adjudicators.”

The panel also noted that Spears and Eliades had worried that “negative professional consequences” could flow from Spath’s rulings against them.

“But we cannot imagine that any state bar association or other professional licensing body—especially once presented with this opinion—would initiate disciplinary proceedings against lawyers based solely on the orders of a judge ethically disqualified from issuing them,” wrote Tatel.

Jenner partner Todd Toral, lead lawyer for Spears and Eliades, said the decision “completely vindicates” the two lawyers “who have maintained all along, often at risk to their personal liberty, that their conduct was in keeping with the highest ethical ideals of the legal profession.” Matthew Hellman, co-chairman of the firm’s appellate and Supreme Court practice, argued the case.

Al-Nashiri was represented by Michel Paradis of the Office of Chief Defense Counsel.


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