Lawyers for the alleged planner of the USS Cole bombing filed a motion Tuesday accusing senior Pentagon officials of unlawfully meddling in the Saudi prisoner’s coming death-penalty tribunal by ordering the judge to move to Guantánamo until the trial is over. They asked the judge to throw out the case.
The 12-page filing, under seal at the war court, invokes the U.S. military principle of unlawful command influence, which says that military justice works only if the officers who serve as judges aren’t beholden to more senior leaders in their chain of command.
But lawyers for Abd al Rahim al Nashiri argue that a retired two-star Marine general guiding the process from the Pentagon does just that by suddenly requiring war court judges to move to Guantánamo from the moment they are assigned a case through trial.
Retired Maj. Gen. Vaughn A. Ary, called the convening authority for military commissions, proposed the rule change Dec. 9, saying “the status quo does not support the pace of litigation necessary to bring these cases to their just conclusion.” Deputy Secretary of Defense Robert Work adopted it Jan.7.
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“The Convening Authority is clearly seeking to hold the judges prisoner at the Guantánamo penal colony,” said Nashiri attorney Rick Kammen by email Tuesday. He confirmed that his team had filed the 12-page unlawful influence motion at the war court but declined to release it.
The new rule appears to require that the Cole case judge, Air Force Col. Vance Spath, set aside his primary duty as chief of the Air Force judiciary and move to the remote base in Cuba until the end of the capital trial of Nashiri, 50. No date has been set because of protracted pretrial wrangling, an appeal and CIA-related security issues.
Nashiri is accused of orchestrating al-Qaida’s October 2000 suicide bombing of the warship off Aden, Yemen, that killed 17 U.S. sailors. But Spath has refused to set a trial date until certain issues are decided — including a prosecution appeal of his decision to dismiss charges involving al-Qaida’s 2002 attack on a French oil tanker.
But, rather than speed the way to trial, the unlawful-influence issue could become the next legal question to preoccupy the war court at Guantánamo. Attorneys in the five-man Sept. 11 conspiracy trial are preparing a similar motion, said David Nevin, attorney for the alleged 9/11 mastermind, Khalid Sheik Mohammed.
In fact, defense attorneys in the Sept. 11 case want that case’s judge, Army Col. James L. Pohl, to order the disclosure of behind-the-scenes information about the timing and influence of the relocation question — including any possible role by the prison and U.S. Southern Command commanders as well as Congress and the Obama administration.
Both were in go-slow mode awaiting the release of the Senate Intelligence Committee report on the CIA prison network that interrogated the six men awaiting death trials before their 2006 transfer to Guantánamo. Now the judges in each case have ordered prosecutors to review the sealed, secret filings and transcripts of the pretrial proceedings to see what might be made public.
Meanwhile, the motion filed Tuesday with Spath, and obtained by the Miami Herald, asks him to dismiss the case for “denial of due process” and “failure to provide an independent judiciary.” It seeks to question both Ary and Work under oath about how the rule change came about.
“The decision was made with the goal of having judges more available for the military commissions,” a Pentagon spokesman, Army Lt. Col. Myles B. Caggins III, told the Herald Tuesday. “As always, the judges remain fully in control of their scheduling and docket.”
Caggins said it not yet known how or when the order would be implemented.
One scenario would reassign the judges to Guantánamo on temporary duty status, meaning they might continue bivouacking at $50-a-night guest quarters not far from the base Officers Club and shuttle to the expeditionary, tent city court compound with just one courtroom that’s secure enough for the national security cases.
Another would constitute a Permanent Change of Station, meaning the Army-colonel-equivalent judges would be able to bring their households and vehicles by barge, enroll their children in the K-12 base school and be based at the 45-square-mile outpost in southeast Cuba.
Eugene R. Fidell, a Yale Law School expert in military justice who has observed a war court hearing and has co-taught courses on Guantánamo, said Tuesday the reassignment order would inevitably accelerate the pretrial process.
“It’s a pretty grim place and that will incentivize the judges to set a faster pace for everyone,” he said.
If the judges are there full time, he added, he’d expect they’ll order other court participants to Guantánamo more frequently as well. “If that means calling people in senior FBI and CIA positions and saying you’re going to be in court at Guantánamo answering questions, that will be a sea change, too.”
Fidell said the commute and surroundings have slowed the trials, calling it “another dividend we can trace back to the Bush administration and the whole concept of using Guantánamo as an expensive, makeshift courthouse.”
“The problem is that we don’t have a real judiciary in the military commissions,” he added. “A real judiciary would have had judging as its primary responsibility from the beginning, instead of this one-week-on/two-weeks-off arrangement.”
Spath, through an aide, declined to comment Tuesday on how soon he could move to the remote base, or whether he would be allowed to choose to drop either the war court case or run the Air Force Judiciary from Guantánamo.
Ary wrote an action memo seeking the change on Dec. 9, three weeks after the Navy judge in Guantánamo’s third war court case, the non-capital prosecution of alleged al-Qaida commander Abd al Hadi al Iraqi, refused to move up a Jan. 26-30 hearing.
At issue was the sensitive topic of whether the prison’s practice of having female guards handle war-court defendants between legal meetings violated the status quo, disrupted attorney-client meetings and was disrespectful of the accused terrorists’ practice of Islam. Prosecutors hadn’t provided defense lawyers what they needed to argue it that day, Nov. 18, but thought they could get it to them before the Jan. 26 hearing.
But Navy Capt. J.K. Waits, who’s based in Italy, refused to hold an earlier hearing. “That’s not going to happen,” he said. “I have a day job.”
He then rattled off a court schedule that took him from Sigonella, Sicily, to Bahrain and two other U.S. military cases on his circuit of Navy and Marine Corps cases from Europe to the Middle East.
Under the new rule it was unclear whether Waits could continue handling those U.S. military trials but put them on a back burner behind the war court prosecutions, or would have to give up his “day job” as a military judge under the Uniform Code of Military Justice.
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From the defense filing
“Even if the Convening Authority is merely unlawfully attempting to influence the pace of litigation, and not also trying to unseat a sitting military judge by restricting his duties and ordering him to be permanently reassigned to Guantánamo Bay, this influence places an intolerable strain on public perception of the military justice system.”