A team from Jenner & Block is fighting attempts by the U.S. Justice Department and a military judge to force two civilian lawyers to continue to represent the alleged bombing mastermind of the USS Cole warship after discovering what they contend was government monitoring of their attorney-client conversations.

The dispute recently reached the U.S. Court of Appeals for the D.C. Circuit. The Jenner & Block team, led by partner Matthew Hellman, co-chairman of the firm's appellate and Supreme Court practice, asked a three-judge panel to order the government to allow Mary Spears and Rosa Eliades to intervene in proceedings before the U.S. Court of Military Commissions Review.

The military court is considering, among other issues, whether the military trial judge in the USS Cole case can force the two lawyers to represent Abd al-Rahim al-Nashiri despite their resignations on ethical grounds.

Spears and Eliades ended their representation of al-Nashiri soon after the discovery of a hidden microphone in their meeting room. Other monitoring equipment reportedly was found in nearby rooms. The two lawyers were excused from al-Nashiri's case by the chief defense counsel for military commissions at Guantanamo. His authority to do that has been challenged by the military judge.

A three-judge panel of the D.C. Circuit on May 10 directed the Justice Department to submit a declaration “describing any and all intrusions that have occurred, may have occurred, or that the government believes foreseeably could occur” in the prosecution of al-Nashiri. Five days later, the department notified the panel that it had dropped its opposition to the two lawyers' intervention in the military appeals proceedings and it moved to dismiss the D.C. Circuit case. The appeals court is now considering whether the dispute is moot.

Al-Nashiri, a Saudi, faces the death penalty. His trial has been put on hold pending the outcome of the military appeals commission proceedings.

The Jenner & Block team has included Hellman, Los Angeles-based partners Todd Toral and Brandon Fox and Keisha Stanford, a senior associate in the firm's Washington office. Hellman, who argued and won a major criminal tax case in the U.S. Supreme Court in March—Marinello v. United States—recently spoke with The National Law Journal about the firm's ongoing role in the Guantanamo case.

NLJ: When and how did this case come to you?

Hellman: Jenner has a team led by Todd Toral, who has been representing our clients in the military commission ever since the government sought to compel them to serve as counsel to al-Nishiri. About two months ago, it became clear that we might need to go to the D.C. Circuit, and so Todd reached out to me to help with the appellate aspects of the case.

Why did you personally decide to take it on?

This was an easy yes. Our clients received authorization to withdraw as counsel after they learned that it was impossible to represent their client in an ethical manner because the government was listening in to their conversations with their client. This appeal is about whether the military commission can now force—physically compel—them to serve as counsel despite those intrusions. And it's about whether the commission can do that without even allowing our clients to meaningfully participate in those proceedings to oppose that outcome.

Most lawyers haven't experienced representation at Guantanamo. Have you had any experience representing detainees there or any other type of contact?

Jenner really has an unmatched record when it comes to pro bono, and that has included substantial Guantanamo-related litigation. Some of my colleagues have been to Guantanamo in connection with their work. For my part, I worked on the Padilla v. United States case in the Supreme Court and then argued the Jayyousi v. United States case in the Eleventh Circuit, both of which were criminal cases that implicated military commission issues.

The case is obviously important to your clients but are there larger issues at stake here?

Absolutely. The court has required the government to submit a declaration by noon on Monday detailing all of its intrusions into our clients' legal work. That document matters not to just this case, but to anyone who is concerned with fair representation and due process.

You are no stranger to litigating opposite the government. Does this case present any special challenges for you?

Well, as you know, sometimes we find ourselves litigating alongside the government one day, and against the government the next. It really depends on the case. But for this particular case, I guess I'd say that while the military commissions may be a new bottle, they still have to have the old wine of fair representation and due process. That's what makes any tribunal legitimate.