The Pentagon war crimes prosecutor has arranged for a separate boat to ferry the USS Cole case judge and his staff across Guantánamo Bay in what is emerging as a possible resolution to a war court standoff that has paralyzed the 9/11 trial.
The chief judge, Army Col. James L. Pohl, abated the 9/11 proceedings and canceled this month’s hearing after the prison commander, Navy Rear Adm. Edward Cashman, decided that the war court judiciary staff was no longer entitled to separate, fast-boat transport across the bay. Pohl called the prison commander’s decision to “commingle” him and his staff with death-penalty case lawyers, reporters and victims an intrusion into his carefully crafted system of judicial independence.
Air Force Col. Vance Spath, the judge presiding in the USS Cole bombing case, similarly abated the proceedings over the lack of judicial sequestration, casting doubt on whether the July 31 to Aug. 4 Cole hearings would be held. But Monday afternoon, a war court official said that the prosecution had arranged — apparently with the base commander, not the prison — to rent a Utility Boat for judiciary bay crossings, and Spath had accepted the alternate arrangement.
The Pentagon’s division that runs the military commissions will pay the Navy base $300 for each crossing, according to an official with knowledge of the deal.
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The issue was the latest to bedevil efforts to get past the pretrial phases in the death-penalty cases against the five alleged plotters of the Sept. 11, 2001 attacks that killed nearly 3,000 people and against a Saudi man accused of orchestrating al-Qaida’s Cole bombing off Yemen that killed 17 sailors on Oct. 12, 2000.
“The prosecution acknowledges the military judges’ legitimate concerns over the commingling issue,” Martins’ liaison Karen Loftus wrote families of victims of the 9/11 and USS Cole attacks on Monday. But Martins “also recognizes” Cashman’s “authority to regulate the prudent use of his assets that are scarce and expensive for the American people to field, operate and maintain. The Chief Prosecutor is in communication with the respective parties in an effort to resolve this impasse as soon as possible.”
Left unclear in the showdown is how a judge at the war court became dependent on the prison commander for his Guantánamo Bay transport in the first place.
The prison is essentially a tenant at the Navy base run by Navy Capt. Dave Culpepper, who controls virtually all the vessels that cross and secure Guantánamo Bay, with the exception of the one U.S. Coast Guard unit that answers to the prison commander. Utility boats regularly connect the Leeward to Windward side of the bay as an alternative to the large ferries capable of carrying cars, truck and Humvees.
But the special Coast Guard detachment, which at one point had also provided security at the war court, had for years shuttled the judges and their staff across the bay on its heavily armed fast boat. Then Cashman became the 17th commander of prison operations in April and withdrew the transportation accommodation.
Some senior Trump administration officials, including Attorney General Jeff Sessions and National Director of Intelligence Dan Coats, similarly reached the war court by utility boat during a recent visit. During the Bush administration, the base assigned a fancy version known as the Skipper’s Gig for reporters commuting to the court from guest quarters across the bay. Now reporters sleep in tents and walk to work.
Cashman’s spokesman declined to say whether the admiral had recently had his coastal security force decreased. Navy Cmdr John Robinson III, the admiral’s spokesman, said the prison was “fully mission capable to support the Commissions proceedings consistent with any validated operational requirements should the Commissions recommence.”
Still the move does come at a period of downsizing at the prison, including the elimination of a prison staff newsletter established in 2002. With just 41 wartime prisoners, Cashman’s staff has been reduced to 1,500 troops, including the Coast Guard security force, and civilian contractors.
Verbatim | The prosecution statement
Dear 9/11 and USS COLE Families,
On 30 June 2017, the military judge, in Appellate Exhibit 485D, issued an order abating hearings in U.S. v. Khalid Shaikh Mohammad, et al. On 5 July, the prosecution filed Appellate Exhibit (AE) 485E, Government Motion to Reconsider AE 485D Order to Abate Proceedings Due to Joint Task Force Guantanamo (JTF GTMO) Policy #3.15 Requirements for Use of Dedicated Military Aircraft and other Transportation Assets.
Judge Pohl denied that motion on 7 July 2017 and cancelled the July 9/11 hearings. The commission held in abeyance the decision as to further adjusting the schedule.
In a similar fashion, Judge Spath abated the hearings in U.S. v. al-Nashiri on 7 July 2017, in Appellate Exhibit 379. In his order, Judge Spath raised concerns that JTF GTMO Policy # 3.15, as currently implemented, will result in commingling between the military judges and personnel with whom they should have no contact, such as victim families, the media and numerous non-government organizations. The judge specifically mentioned that this ruling only affected all physical hearings in Naval Station Guantanamo Bay (NSGB) until appropriate remedial action is taken; discovery and pleadings may continue. The government filed a Motion to Reconsider (MTR) that ruling on 12 July 2017. Judge Spath has not issued an order on the MTR at this time.
The Prosecution acknowledges the military judges’ legitimate concerns over the commingling issue, but also recognizes the JTF GTMO Commander’s authority to regulate the prudent use of his assets that are scarce and expensive for the American people to field, operate, and maintain. The Chief Prosecutor is in communication with the respective parties in an effort to resolve this impasse as soon as possible.
Karen V. Loftus
Director, Victim Witness Assistance Program
Office of the Chief Prosecutor of Military Commissions
The prison spokesman’s statement
“JTF-GTMO does not comment on tactical assets and remains fully mission capable to support the Commissions proceedings consistent with any validated operational requirements should the Commissions recommence.”
Navy Cmdr. John Robinson III
Public Affairs Officer
Joint Task Force GTMO