The Sept. 11 trial judge lifted his month-old abatement of the case on Wednesday, resolving a standoff with the prison commander over separate boat service across Guantánamo Bay and clearing the way for the resumption of hearings on Aug. 21.
Under the solution, the Pentagon is paying the Navy base $300 for a separate utility boat to ferry the judge and his staff across the bay to Camp Justice, where trials are held, after landing at the remote base’s airstrip. Army Col. James L. Pohl, the chief of the Guantánamo judiciary, had suspended hearings after the prison commander canceled a special fast boat that for years whisked the judge and his staff across the bay — separately from 9/11 families, prosecutors, defense lawyers, and reporters who had all arrived on the same plane from Andrews Air Force Base.
Pohl wrote in a three-page decision Wednesday that the Pentagon’s “U-Boat proposal strikes the appropriate balance” between the prison commander’s “legitimate operational concerns” and the judge’s “interest in preserving the integrity of the proceedings and the independence of the Trial Judiciary.”
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The Aug. 21-25 hearing had been in doubt after Rear Adm. Edward Cashman, commander of the 41-captive prison and a 1,500-member staff, said his U.S. Coast Guard Port Security Unit would no longer provide the shuttle. In response, Pohl canceled a week of hearings in July, and the judge in the USS Cole case, Air Force Col. Vance Spath, similarly abated the proceedings until the Pentagon arranged the $300 boat ride.
However, in court Wednesday, Spath scolded prosecutors over the issue.
He bristled at the tone of a still-sealed filing by the chief prosecutor, Army Brig. Gen. Mark Martins and his staff, lecturing them at length that a judge and his advisers require separate travel arrangements for the integrity of the war-court system.
He had noted earlier that USS Cole case defense lawyers describe the death-penalty trial as “a sham” — a characterization Spath rejected. “A sham proceeding, frankly, would’ve been done in 2011,” he said, referring to the year the accused mastermind of the 2000 USS Cole bombing was charged in the capital case.
Spath said sequestration was necessary to avoid overhearing other war-court travelers talk about the case, for example, offering “an untoward comment ... that people will have to disclose.” Especially in such a cramped place as the naval base at Guantánamo Bay.
“I’m not a prima donna. I don’t care how you transport me. But I don’t know a judge in the world who wants to sit near the press, near victim family members, near the defense, near the prosecutors, near the witnesses, and near everybody else,” he said. Referring to civilian federal courts, he added: “Go find an Article III judge, tell him to go sit with everybody, and see how it goes.”
Spath had already declared himself, during travel to and from the base, “uncomfortable with proximity” to the shipmates and families of 17 sailors killed in the USS Cole attack off Yemen on Oct. 12, 2000. The prosecution brings the Cole families to Guantánamo to watch Spath preside in the capital case against Saudi Abd al Rahim al Nashiri.
The families travel on the same flight as the judge, attorneys, reporters, observers, and other war-court staff — and both the trial judiciary and victims sometimes share the first-class cabin of the Pentagon charter flight.
Spath called the scene at Andrews Air Force Base, where the war-court charter originates, “a free-for-all.” Left unsaid was that the judge and his staff are segregated at Andrews’ Distinguished Visitors Lounge, as are the victims’ families. Other Guantánamo-bound passengers wait in the main terminal for the flight.
Spath noted that he hadn’t requested a separate plane for his team but wondered aloud if his staff should take “the rotator,” a regularly scheduled Navy charter that links the base to Jacksonville and Norfolk, Virginia.
Spath also remarked that the prison commander chose to pull the plug on fast-boat service after Spath ordered two of his senior staff to testify on why it was not practical for Nashiri to sleep at Camp Justice during hearing weeks. “We had the doctor in here; we had the camp commander in here. And the next time we have sessions down here, they’ve changed all of the procedures. Fascinating,” he said.
In the end, Spath sided with the prison. But, he said, “I have a feeling they’re going to testify more. Am I going to fly down on a prop plane because they don’t like a ruling? I don’t think so.”
In a rare instance, Wednesday’s open-court tongue-lashing of the prosecution occurred on a week when the Pentagon decided to pull the plug on transmissions of the hearings to secure, U.S. viewing sites. Lead prosecutor Mark Miller disclosed Monday that the senior official overseeing the war court made the decision — a first since remote viewing sites were set up — to save money and because much of the week’s testimony was being taken in closed court.
Still to be sorted out on the judicial-sequestration issue is how to handle luggage belonging to the judge and his staff. It is stowed in the cargo hold of the plane that brings everyone else to hearings but has typically been separated on the tarmac for speedboat travel across the bay.
Spath noted in court that didn’t happen this week. His staff members found themselves at the war-court compound mixing with court participants as everyone fetched luggage that was commingled in the truck that carried it on the ferry across the bay.