Court tosses rulings from military judge in setback for USS Cole bombing case at Guantanamo Bay

Court tosses rulings from military judge in setback for USS Cole bombing case at Guantanamo Bay

A federal appeals court tossed years of court rulings on Wednesday in a terrorism case being held at Guantanamo Bay in Cuba focused on the deadly terrorist bombing of the U.S.S. Cole in 2000.

A huge set back for a case that has already been plagued by major delays, the U.S. Court of Appeals for the D.C. Circuit ruled orders made by Air Force Col. Vance Spath — the judge who for years oversaw the military commissions proceedings against suspected al Qaeda member Abd al-Rahim al-Nashiri — must be thrown out.

The three-judge panel cited Spath’s undisclosed conflicts of interest over the years, during which he pursued a job as an immigration judge with the Justice Department while concealing that fact from the defense. Therefore, every ruling of his since he applied for the job is now vacated. The appeals court judges said Spath’s actions gave the “disqualifying appearance of partiality.”

Al-Nashiri, 54, is the alleged mastermind of the bombing of the U.S.S. Cole in the Gulf of Aden in Yemen on Oct. 12, 2000, which killed 17 U.S. Navy sailors and injured 39 more. Al-Nashiri, a Saudi citizen, was captured by U.S. forces in 2002, interrogated at CIA “black sites” around the world for four years, and has been held in Guantanamo Bay since 2006.

“We do not take lightly the crimes that Al-Nashiri stands accused of committing. To the contrary, the seriousness of those alleged offenses and the gravity of the penalty they may carry make the need for an unimpeachable adjudicator all the more important,” Judge David Tatel said, writing the unanimous opinion for the appeals court panel.

In making this ruling, Tatel emphasized “the government seeks to impose the ultimate penalty against Al-Nashiri.”

Spath has presided over the al-Nashiri case since July 2014, and applied for a position with DOJ’s Executive Office for Immigration Review on Nov. 19, 2015. Spath never revealed that fact to defense, even though his actions from that time onward could be seen as part of a job interview. The appeals court panel pointed out that Spath made his role as a judge in the al-Nashiri proceedings a significant part of his job application, with Spath telling the DOJ he was “handpicked by the top lawyer of the Air Force to be the trial judge” for “the military commissions proceedings for the alleged ‘Cole bombing’ mastermind.” Spath’s job application was only revealed through a Freedom of Information Act request.

Spath was offered a job as an immigration judge for DOJ but ran into complications due to the timing of his retirement from the military. It was during this time period that he engaged in a heated dispute with the defense attorneys for al-Nashiri, who wanted to leave the case.

In the summer of 2017, al-Nashiri’s legal defense team consisted of four attorneys. Richard Kammen was a highly experienced defense attorney in numerous capital cases. Mary Spears and Rosa Eliades, who had been on the case since 2015, were civilian employees with the Defense Department. And Navy Lt. Alaric Piette, who was assigned to defend al-Nashiri just a few months earlier. All of them reported to Brig. Gen. John Baker, the chief defense counsel of the Military Commissions Defense Organization.

Concerns arose among the defense team about “the confidentiality of Guantanamo’s meeting spaces,” exacerbated by the discovery of a hidden microphone (which the Defense Department described as a nonfunctional “legacy microphone”) in one of the rooms. Spath denied the defense team’s motions seeking answers, after which Kammen, Spears, and Eliades sought permission from Baker to leave the case. He granted their requests, leaving only Piette, who had extremely limited experience in capital cases.

Spath spent late 2017 and early 2018 fighting to force Eliades and Spears to return to the case.

As Tatel put it, “the two subplots of Spath’s story” — the job application and the battle with the defense attorneys — “reached their denouement the week of February 12, 2018.” On Monday of that week, Spath ordered Eliades and Spears to appear by videoconference the next day. On Tuesday, Eliades and Spears said they would not, and so Spath responded by ordering the draft of writs of attachment to have them both arrested. On Thursday, he said he would “think about this overnight.” But, as Tatel put it, “he was mulling a different important decision on Thursday night”, when an human resources specialist in the Executive Office for Immigration Review gave Spath his start date, saying he could begin with them on July 8, 2018. He said he would get back that weekend and would call on Tuesday.

Spath “indefinitely” abated the military commission proceedings against al-Nashiri the very next morning.

Tatel also outlined how the Court of Military Commission Review played a role in Spath’s alleged concealment. The Court of Military Commission Review responded to requests for information from al-Nashiri’s lawyers by “calling the reports ‘unsubstantiated assertions’ and arguing that the ‘[d]efense request offers no basis to believe that the former presiding military judge has applied for a position with the [Justice Department] or even contacted the [Justice Department] regarding employment.’”

But, as Tatel pointed out, “less than a week later, however, an Associated Press photograph surfaced showing Spath standing next to Attorney General [Jeff] Sessions at a welcome ceremony for new immigration judges.”

Tatel vacated all the decisions made by the Court of Military Commission Review.

“Criminal justice is a shared responsibility,” Tatel said in the ruling. “Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system — from the prosecution team to the Justice Department to the CMCR to the judge himself — failed to live up to that responsibility.”

What will happen next in al-Nashiri’s case is unclear, but this is a huge set back for prosecutors.

Al-Nashiri’s case is not the only terrorism case being adjudicated down at Guantanamo Bay. Other members of al Qaeda, including Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 terrorist attacks, are also held there.

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