A Guantánamo prosecutor filed notice on Wednesday that he plans to appeal the USS Cole trial judge’s decision to shut down the war court’s longest running death-penalty case until someone else figures out fundamental questions about how military commissions work.
Lead case prosecutor Mark Miller filed the one-paragraph notice with the office of the chief war court judge, Army Col. James L. Pohl, of his team’s plan to take the appeal to the U.S. Court of Military Commissions Review. Miller, a New Orleans-based Assistant U.S. Attorney on loan to the war court, provided no basis for the appeal in the now suspended capital case.
Former CIA prisoner Abd al Rahim al Nashiri, a Saudi, is accused of plotting the al-Qaida suicide bombing of the U.S. Navy warship off Aden, Yemen, that killed 17 American sailors on Oct. 12, 2000. He has been held at Guantánamo since 2006.
On Friday, war court judge Air Force Col. Vance Spath abated the proceedings, which began with arraignment in 2011, after a self-described sleepless night at the U.S. Navy base at Guantánamo Bay. At issue: Spath’s inability to get three civilian defense lawyers back on the case. They resigned in October with the permission of the war court’s Chief Defense Counsel, Marine Brig. Gen. John Baker, over the belief that their confidential conversations with Nashiri were compromised.
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Spath has ruled that the three attorneys — Rick Kammen, Rosa Eliades and Mary Spears — had no authority to leave the case on the say-so of Baker, who has oversight of war court defense teams. Moreover, he has said he has seen no evidence of the breach of attorney-client confidentiality and so doesn’t recognize that the three lawyers have ethical conflicts. A detailed explanation of the defense lawyers’ suspicions is classified.
The issue spawned a series of challenges to the judge’s authority, including whether Spath had the right to summarily find Baker in contempt of court and sentence him to 21 days confinement. Lawyers for Baker have an appeal pending on that question in U.S. District Court because U.S. citizens are not generally subject to the jurisdiction of military commissions — the war court President George W. Bush created after the 9/11 attacks to try foreign captives suspected of war crimes.
The Court of Military Commissions Review is also to some degree bedeviled by uncertainty: The U.S. Supreme Court is deciding a question of whether judges who sit on court-martial cases can also be a member of the hybrid civilian-military CMCR, which is the first stop for appeals of Guantánamo cases.
In a separate development Wednesday, the Pentagon rejected a bid by the Miami Herald under the Freedom of Information Act to obtain, or at least safeguard, hundreds of hours of audio tapes maintained by the war court judiciary.
Department of Defense Freedom of Information office Chief Stephanie L. Carr confirmed that 730 hours of audio records exist. But she quoted Air Force Col. Matthew van Dalen, the acting chief of staff at the office of military commissions — as well as the acting legal adviser in the Nashiri case — as saying the audio recordings “contain information that is classified” and not available for the public to see “in the interest of national security.”
The rejection letter did not say what precisely was at risk but invoked a clause covering “military plans, weapons or operations” and “intelligence activities [including covert action], intelligence sources or methods or cryptology” as well as “foreign relations or foreign activities of the United States, including confidential sources.”
The court has been taping both classified and unclassified hearings, as demonstrated by Spath’s disclosure in court on Feb. 15 that he listened to audio of a Feb. 13 session to determine whether a transcript was authoritative.
Notice to Sept. 11 families
On Feb. 21, the office of the Pentagon prosecutor notified Sept. 11 family members about the shutdown of the USS Cole case in this bulletin board message:
Dear 9/11 Families,
We will be on island next week for hearings in U.S. v. KSM et al. The hearings are scheduled to conclude on Friday, 2 March 2018.
After next week, hearings in U.S. v. KSM et al will take place from 1-11 May 2018. Many of you have signed up to attend future hearings. As soon as the court schedule is definite, we will finalize family members traveling during future sessions.
Last week’s hearings in U.S. v. al-Nashiri (USS COLE bombing case) have concluded. Although this case has no direct correlation to the 9/11 hearings, it is likely you heard about developments, and important to keep you informed.
For the last two sessions, three of al-Nashiri’s defense counsel have refused to appear before the court. They assert that they have been properly excused by the Chief Defense Counsel. At issue is whether the Chief Defense Counsel or the Military Judge has the authority to release counsel and sever the attorney-client relationship. The military judge in al-Nashiri, Judge Spath, abated all future hearings indefinitely pending resolution of that question. We will update you on the status of all future U.S. v. al Nashiri hearings as soon as the proceedings resume.
Karen V. Loftus
Director, Victim Witness Assistance Program (VWAP)
Office of the Chief Prosecutor of Military Commissions