The Long Commute
For David Nevin, the miles between Boise and Guantánamo Bay are secondary to justice for high-profile client Khalid Sheikh Mohammed
Published in 2018 Mountain States Super Lawyers magazine on June 11, 2018
The bee hummingbird, native to Cuba’s lush tropics, weighs approximately 2 grams, measures about 6 centimeters long and zooms around the island in a blur of red, pink, blue or emerald, depending on gender. It’s the smallest bird on earth. For a guy like attorney David Nevin, who’s studied bird identification for years, it’d be a dream sighting.
“After about a half hour of [bird] watching, this feeling of relaxation flows over you, just because you have been paying attention to the bird and not thinking about yourself,” he says.
But when Nevin is in Cuba, on the grounds of Guantánamo Bay, it’s not an option. “I just never have time to stop and check them out,” says Nevin.
Nevin, a founding partner in the Boise, Idaho, firm Nevin, Benjamin, McKay & Bartlett, is often there to visit his client Khalid Sheikh Mohammed, described in the 9/11 Commission Report as the “principal architect” of the September 11, 2001, terror attacks. “When we go down for hearings, life is a horse race of court appearances, team meetings, client meetings, victim family member meetings, press meetings,” he says. Nevin’s doing well if he gets a run in.
If all you know of Nevin is the kind of cases he takes, you might imagine him as a guy itching for a disagreement. Opposite: He’s droll, friendly and eager.
Not that he minds a fight.
He represented Kevin Harris, whom the government tried for killing a deputy U.S. marshal at Ruby Ridge in 1992. Nevin poked holes in the government’s case and provided evidence that Harris was defending himself against unknown assailants. Ultimately, Harris was acquitted on all charges and he received a sizeable payout. In 2004, Nevin successfully defended Sami Omar Al-Hussayen, a Saudi grad student whom the government charged with raising money and recruiting newcomers for terrorist groups.
Nevin’s representation of Mohammed in particular has brought him vitriol as well as condemnatory op-eds.
“I respect Nevin’s devotion to principle,” wrote attorney Paul M. Barrett in a Bloomberg Businessweek opinion piece. “I just don’t share it. Life is not an amalgamation of abstractions. Rules have exceptions. Not every prosecution has to set a precedent for all other prosecutions. A man capable of planning the destruction of 3,000 innocent people isn’t just another criminal deserving the procedural niceties offered even the most heartless street thug.”
Nevin rejects the suggestion that just going through the motions is sufficient. “Every case is a link in a chain, and the chain is only strong as the weakest link,” he says. “I have gotten the occasional death threat, but mostly I get support. I think Americans, generally speaking, recognize that the system isn’t perfect, but way ahead of what’s in second place.”
“I don’t think he has a desire to be disliked,” says attorney Jeff Brownson, who worked at Nevin, Benjamin, McKay & Bartlett and now runs his own shop in Boise. “I think he has the ability to see that every human deserves respect and dignity and everybody’s worth fighting for.”
Brownson says Nevin was a great teacher who took time to pitch in on other people’s cases, even when he was knee-deep in military tribunal work. “I always thought it was a gift anytime I could walk into his office and ask for advice,” Brownson says. “I think I held out for a week once, and then walked into his office and asked his opinion on whether or not I could do a certain thing in a case. I’ll never forget David’s response: ‘Well, I don’t know, but you can do whatever you want until a judge tells you you can’t.’”
Slender, silver-haired and owlish, Nevin was given the nickname ‘The Velvet Shiv’ by high-flying Michigan lawyer Geoffrey Fieger when Nevin teamed with Gerry Spence to represent Fieger in 2008. The Justice Department had charged Fieger with making illegal campaign contributions; a jury found him innocent. The nickname’s implication is that Nevin presents himself as someone you surely don’t need to worry about—until he pulls away and the damage is done.
Nevin chuckles. “I’m not a particularly ornamented person,” he says. Among those who know him best, he says, the nickname “comes up when they are making fun of me—’Oh that was so very ‘Velvet Shiv’ of you.’”
Wendy J. Olson, former U.S. Attorney for the District of Idaho and now partner at Stoel Rives, says Nevin is “a master tactician and a master of strategy. He never does anything in the courtroom or in litigation that doesn’t have purpose.”
She recalls a time when she was prosecuting a couple of ranchers from a rural part of the state on immigration charges related to some of their workers. At the beginning of trial, he walked over to Olson and introduced her to the pair and had them shake hands. “It’s a little harder to meet someone one-on-one and then go ahead and prosecute them,” she says. “I’m sure that was part of his game plan.”
Nevin grew up in a countercultural, intellectual home in Shreveport, Louisiana. His parents divorced when he was a baby, but he was raised jointly by his mom, a secretary for an oil company; and his dad, a staff writer at Life magazine and an author of historical novels, including Dream West in 1984. Nevin inherited his father’s interest in writing and would like someday to write a memoir of his career.
He graduated from the University of Colorado with an English lit degree in 1974. He only became a lawyer, he claims, because a friend made him.
He was working on a road crew in Colorado—“So that I could hang out”—pushing a shovel and sweating into his boots. A buddy asked him what he was planning on doing with his life, and Nevin told him he would maybe go to heavy equipment school.
“What?” the buddy said. “Shut up!,” his friend said, adding a few other choice words, before suggesting that Nevin consider law school.
He enrolled in law school at the University of Idaho, graduating cum laude in 1978. While clerking for an Idaho Supreme Court Judge, Nevin considered what kind of law he might practice. He was angling for a job at a major Idaho firm when Klaus Wiebe offered him a position in the Ada County Public Defender’s Office. “I needed a job and I took it,” he says. Fortuitously. Criminal defense law, Nevin learned, “turned out to be probably one of a couple of possible areas of law that I could really make a career out of. It just fit precisely with my inclinations and abilities.”
Wiebe infused him with a sense of mission, a belief that what he was doing mattered most when you went all-in. “The idea was that we were not just filling out a dance card for the criminal justice system. That we were actually trying to make a difference,” Nevin says. “It’s hard work, too, and scary, and it’s important to show up and overcome your fears and do good work. That was something that all of us came to take really seriously.”
He left the public defender’s office and teamed up with Breck Seiniger, a celebrated criminal defense attorney. There, he was interested in the kinds of cases that could “make a difference,” but along the way, both were interested in the kinds of cases that would pay the bills. Nevin jokes that the firm once considered getting a big clock on the office wall, like the kind a diner has that says “Time for Coffee.” Theirs would say “Time to Sue.”
His profile was raised in 1992 when he took a call from a magistrate judge and found himself in the middle of the Ruby Ridge debacle. A federal response to an armed enclave of conspiracy-obsessed separatists had led to a shootout and three deaths. The government misrepresented their actions in court, and Nevin effectively communicated that to the jury by turning their attention to the prosecution’s efforts to hide evidence and mislead them.
“It taught me that when there’s a lot at stake, you never can assume that the other side is playing fair. There was a lot at stake in that case, and they didn’t play fair. They cut a lot of corners and did a lot that was wrong,” he says. “There is a way in which the government will play fair when they are in a position of strength and know what they have beyond their allegations, sure no problem. But when things are closer to the bone, that’s when you start to see abuses and have to be vigilant.”
These days, Nevin is focused on the case that is increasingly defining his career: Being one of four lawyers defending Mohammed and several other 9/11 conspirators before a military tribunal at Guantánamo Bay. Nevin, having again recently returned to Boise after a week on the U.S. Naval Base, describes the difficulties of an unprecedented legal process that frequently seems reinvented on the spot.
In January, for instance, Nevin was stopped by soldiers on security detail who demanded to search his privileged material. This had not happened before. Nevin locked the backpack he’d been bringing to the proceedings in his car, and protested that the searches constituted illegal restrictions on his ability to practice law. [In March, Nevin staged another informal protest—all but refusing to speak in court as he protested restrictions recently imposed on the defense team.]
Mohammed was arrested in Pakistan in 2003; he was rendered to secret CIA “black sites” where he was waterboarded 183 times in one month. Charges have been brought against him and the other defendants, thrown out, and brought up again. There have already been 28 pretrial hearings.
“The entire process is corrosive to fairness,” Nevin says. “If you had told me I was going to represent a man detained incommunicado and tortured for three and a half years by the U.S. government, I would have told you that’s crazy; that could never happen in the United States. But it did.”
Nevin says it could be up to four more years of hearings before the case comes to trial. Then perhaps a year to try, and years more for appeals.
“We know that he’ll never be released,” says Nevin. “The government has made that plain. So release is not the question. The question is, ‘Is the government going to kill him before he dies a natural death?’ And there are so many reasons for the government to not do that—apart from the moral questions of whether a civilized government should kill someone that it holds as a prisoner in custody.”
Nevin sounds exhausted when he details what it’s like to work at Guantánamo—the mold in the desks, the microphones in the smoke detectors—but startled, too, like it still surprises him, after all this time.
“I will go on defending the case at Guantánamo for as long as I can. I think it has meaning, and it is important and needs to be seen through, and I don’t want to walk away from it,” he says.
When he’s home in Idaho, Nevin likes to pop open his garage door and drink in the vista before him. A veteran mountain biker, he can ride five minutes from his driveway and be in the foothills of the Rocky Mountains. “I’ve ridden Moab and all sorts of places in the West, but I think Boise has the best mountain biking anywhere,” he says. “I enjoy the way the physical exertion provides stress relief and a calm place to think and recharge.” He’s out on the trails three or four days a week, weather permitting.
And then there are the birds, when he finds the time. “It’s meditation, is what it is,” he says. “Most of what we think of as mindful meditation is about focusing your attention. You’ve only got a few seconds to focus and carefully view the feet, the shape of the beak, the length from tail to head, and assimilate it all before it flies away.”
Gitmo By The Numbers
40 – Detainee population as of May 2018
45 – The square miles the base occupies
115 – Years that the United States has leased Guantánamo Bay Naval Station from Cuba
684 – The peak detainee population, June 2003
$4,085 – The amount per year which the U.S. pays Cuba in a perpetual lease signed in 1934