SPOTLIGHT CLE: NINE YEARS IN THE GUANTANAMO GOO Sponsor: Criminal Law Section CLE Credit: 1.0 Wednesday, June 13, 2018 10:40 a.m. - 11:40 a.m. Bluegrass Ballroom I Lexington Convention Center Lexington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i Letter from Ellen Yaroshefsky ......................................................................................... 1 Exhibit A – Governmental Interference with Attorney-Client Communications, Intrusions into Attorney-Client Relationships, Undisclosed Monitoring, and Infiltration of Defense Teams .................................. 7 Exhibit B – Ellen Yaroshefsky Curriculum Vitae ................................................. 15 Unofficial/Unauthenticated Transcript ............................................................................ 27 Defense Motion of Appropriate Relief ............................................................................ 37 THE PRESENTER Richard Kammen Kammen & Moudy 135 North Pennsylvania Street, Suite 1175 Indianapolis, Indiana 46204 RICHARD KAMMEN is a criminal defense lawyer with Kammen & Moudy in Indianapolis. He concentrates his practice in serious felonies, white-collar defense, complex crimes and death penalty defense. He graduated from Ripon College cum laude in 1968 and New York University School of Law in 1971. Admitted to the Bar in 1971, he began his practice after service in the United States Army. During his professional career, Mr. Kammen has served as a public defender in the Marion County Courts on two occasions, 1972-1974 and 1978-1979. Mr. Kammen has defended over three hundred homicide cases including approximately forty death penalty cases in both state and federal courts. No client that he has represented at trial has been sentenced to death. Mr. Kammen has been trial counsel on six state death penalty cases, including State of Indiana v. Charles Smith, a retrial of a reversed death penalty conviction in which the defendant was found not guilty. He has been appointed by United States District Court judges to represent capitally charged defendants throughout the United States including such cases as United States v. Raymond Cheely, United States v. Reginald Brown, and United States v. Joe Minerd, in which the defendant, convicted of killing his pregnant girlfriend and her three year old with a bomb, received a life sentence. Mr. Kammen was appointed “learned counsel” in United States v. Donnell Young, which was, until it was resolved by a plea the longest Federal capital case pending in the United States. He was appointed as “learned counsel” in the Federal capital case United States v. Timothy O’Reilly and was lead counsel on the defense team that represented David Camm who was exonerated and freed by acquittal, after being imprisoned for thirteen years, and two prior convictions of killing his wife and two children. Until October of 2017, Mr. Kammen served as “Learned Counsel” in United States v. Abdul Rahim Al-Nashiri who is charged before a Military Commission at Guantanamo Bay Cuba. Al-Nashiri is alleged to have been a central figure in the bombing of the U.S.S. Cole in 2000 in Aden, Yemen. This is likely to be the first capital military commission. A frequent speaker and lecturer on criminal defense issues, Mr. Kammen has spoken in almost every state and federal circuit. He has been a member of the faculty of the National Criminal Defense College since 1982 and the Trial Lawyers College since 2001. Mr. Kammen is the recipient of the Pro Bono Award given by the Indiana Bar Association. i ii Ellen Yaroshefsky Attorney 670 West End Avenue, #6N • New York, NY 10025 [email protected] 516-463-5882 October 5, 2017 Mr. Rick Kammen Kammen and Moudy 135 N. Pennsylvania Street, Suite 1175 Indianapolis, Indiana 46204 Re: Guantanamo Military Commission Case Charges Against Abd al-Rahim Hussayn Muhammed al-Nashiri Dear Mr. Kammen: This letter is in response to your request for an opinion regarding your ethical obligations in this matter. You have advised me that you are learned counsel (death penalty counsel) for Mr. al- Nashiri who is charged with capital crimes before a Military Commission in Guantanamo Bay. You provided me with the facts set forth below as well as a document, attached hereto, entitled "Governmental Interference with Attorney-Client Communications, Intrusions Into Attorney-Client Relationships, Undisclosed Monitoring, and Infiltration of Defense Teams" (Exhibit A). You are admitted to practice in Indiana. I have no personal knowledge of the facts of this case. In rendering my opinion, l rely upon the facts set forth below and the document provided (Exhibit A). Some of the facts below contain references to redacted material because some of the information is classified information. My opinion is predicated upon the standards of care and governing standards of professional conduct set forth in the Model Rules of Professional Conduct (governing lawyers in the various branches of the U.S. military), Indiana Rules of Professional Conduct and that of every state in the country, as well as related ethics opinions and case law. I have also relied upon standard treatises in the area of legal ethics. The ethical and fiduciary duties identified below are firmly established. My opinion is expressed to a reasonable degree of professional certainty. My Qualifications I am the Howard Lichtenstein Professor of Legal Ethics and the Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at the Maurice A. Deane School of Law at Hofstra University in New York. 1 My qualifications to serve as an expert witness on legal ethics are set forth more fully in my curriculum vitae, attached as Exhibit B. It describes my educational background, legal experience, bar admissions, academic affiliations, professional activities, bar committee memberships, publications and participation as a lecturer at bar seminars, CLE panels and at other organizations on matters related to professional responsibility. Briefly, I have taught courses in the field of lawyer regulation for the past twenty-three years and was named to my current position in 2016. Before that I was the Director of the Jacob Burns Ethics Center at the Benjamin N. Cardozo School of Law School[sic] from 1994-2016. I have published numerous articles in the field and have produced materials for the American Bar Association and other organizations. I have spoken widely on legal ethics including continuing legal education programs before numerous bar associations, lawyer associations, and law schools. I serve on the New York State Bar Association Committee on Standards for Attorney Conduct as well as the Committee for Professional Responsibility of the Association of the Bar of the City of New York. I am co-chair of the Ethics Advisory Committee of the National Association of Criminal Defense Lawyers. I am also the ethics advisor to the Prosecutorial and Judicial Complaint Center of the New York State Association of Criminal Defense Lawyers. I am on the Board of Advisors of the New York County Lawyers Ethics Institute and a member of its Professional Ethics Committee. I served as co-chair of the ethics committee of the Criminal Justice Section of the American Bar Association. I regularly consult with lawyers and law firms on a wide range of matters related to legal ethics. I have served as an ethics expert in litigation. Factual Basis You have provided the following facts: Mr. al-Nashiri is charged with capital crimes before a military Commission in Guantanamo Bay. Mr. al-Nashiri was charged in 2008, and his case has been pending since 2011. The attached Exhibit A "Governmental Interference with Attorney-Client Communications, Intrusions Into Attorney-Client Relationships, Undisclosed Monitoring, and Infiltration of Defense Teams" established that prior to 2017, there was a significant history of actual and attempted governmental intrusion into the attorney-client relationships, including the placement of listening devices in attorney-client meeting rooms. On June 14, 2017, the Chief Defense Counsel, Brig. Gen. John Baker, USMC, issued a memo notifying defense counsel that he recently came into possession of information raising concerns that defense attorney-client confidentiality had been and/or would be breached again. As a result, he advised all defense counsel to discontinue attorney-client meetings with their clients until