Mattis Says Guantánamo Lawyers Were Fired Over Temperament, Not Legal Work

WASHINGTON — The top two officials overseeing the military commissions court at the Guantánamo Bay wartime prison were fired last month because they were difficult to work with, not because of the officials’ legal actions, Secretary of Defense Jim Mattis and the Pentagon’s general counsel have told a judge.

The court filing from top Pentagon officials was the first explanation for the abrupt ouster of the officials, Harvey Rishikof, who had been serving as the convening authority over the tribunals system, and Gary Brown, his legal adviser. In a separate joint declaration to the judge, the two men said they were given no warning of any management problems and no explanation when they were suddenly fired.

The account from top Pentagon officials was an apparent response to accusations that the lawyers’ work prompted their dismissals. After the firings, lawyers representing detainees charged with aiding the attacks on Sept. 11, 2001, voiced suspicion that they might have been ousted because of a policy disagreement over whether their actions affected detainee defendants. Attempts by superiors to influence the handling of a case are forbidden as unlawful command influence.

The military judge overseeing the Sept. 11 case, Col. James Pohl, ordered Mattis to explain himself. In papers submitted this week to the judge, Mattis signed a declaration saying he fired Rishikof based on the recommendation of the acting general counsel of the Pentagon, William S. Castle — and that their motivation was only to make the administration of the tribunals system “more cohesive.”

In deciding to fire Rishikof, Mattis insisted, he considered his “management/corporate decision-making, professional judgment, and temperament. I did not consider Mr. Rishikof’s performance of any judicial or quasi-judicial acts.”

Castle, who simultaneously fired Brown, submitted his own statement also portraying the pair as difficult to work with. He cited an instance in which they submitted a memo to the deputy secretary of defense without first showing it to the Office of the General Counsel. He also cited an instance when they had sought an aerial photograph of the Guantánamo court building in an “inappropriate” manner — first asking military officials for a flyover, and then, when turned down, asking the Coast Guard to do it instead without coordinating that request with military officials.

The military has not yet posted the filings on the commissions website, but copies were obtained by The New York Times.

In a separate affidavit submitted this week to the judge, Rishikof and Brown said their firings came as a surprise and with no explanation. They expressed suspicions that they may have been fired because of disagreement with their official actions.

“There were no concerns or problems ever expressed by our superiors, and our only work concerned tasks assigned by law and regulation to the convening authority,” Rishikof and Brown wrote. “Therefore, we can only conclude our dismissal must have been based on something related to the performance of convening authority duties. We are concerned that there may be a potential conflict of interest reflected in the dismissal actions themselves, and in the circumstances surrounding the execution of the actions.”

David Nevin, a lawyer for one of the Sept. 11 defendants, declined to comment on the specific contents of the affidavits, but said: “They raise more questions than they answer. Additional information will be needed to fully understand this situation.”