USS Cole case judge names Air Force successor

The USS Cole (DDG 67) is towed away from the port city of Aden, Yemen, into open sea by the Military Sealift Command ocean-going tug USNS Catawba (T-ATF 168) on Oct. 29, 2000.
The USS Cole (DDG 67) is towed away from the port city of Aden, Yemen, into open sea by the Military Sealift Command ocean-going tug USNS Catawba (T-ATF 168) on Oct. 29, 2000. MARINE SGT DON L. MAES

The chief judge of the Guantánamo war court quit the USS Cole case on Thursday and assigned a U.S. Air Force colonel to preside at the likely first death-penalty trial of the Obama administration’s military commissions.

In an order obtained by the Miami Herald, Army Col. James L. Pohl said that he chose to step down from the case to “to ensure continuity of the proceedings and to avoid scheduling conflicts” with the 9/11 conspiracy trial of Khalid Sheik Mohammed and four alleged accomplices in the Sept. 11, 2001 terrorist attacks.

Air Force Col. Vance H. Spath, who joined the service in 1992 as an judge advocate, or military attorney, will handle the case, Pohl said in the order.

Spath, the Air Force’s chief trial judge, previously served as an Air Force prosecutor, notably in the death-penalty case of a Senior Airman Andrew Witt for killing a fellow airman and his wife at Warner Robins Air Force Base in Georgia in July 2004.

Spath also has served as an Air Force defense attorney, for a year in the 90s.

In the Cole case, the Pentagon prosecutor accuses former CIA captive Abd al Rahim al Nashiri, a Saudi, of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing of the U.S. Navy warship off Yemen. Seventeen U.S. sailors were killed, and dozens more were wounded.

It has a provisional start date of Feb. 9, following jury selection from Jan. 4, making it closer to trial than the 9/11 case, which has no trial date.

Pohl stepped down soon after he issued a sweeping discovery order to the government to provide the defense with details of the CIA’s clandestine imprisonment of Nashiri from 2002-2006, an order that prosecutors appealed and then got some relief.

U.S. agents waterboarded Nashiri and subjected him to a mock execution and the defense attorneys want details — names, dates, places — of his four-year odyssey through the CIA’s secret prison network. He was brought to Guantánamo in September 2006.

“The detailing decision was made solely by me in my capacity as Chief Trial Judge of the Military Commissions,” Pohl wrote in his order.

Pohl had only recently from the bench suggested he might give up one of the two cases he unilaterally assigned himself after the Obama administration reformed the war court in 2009.

He has presided at every pretrial session in the Cole case since Nashiri’s October 2011 arraignment, and also every 9/11 pretrial session without scheduling conflicts because there is only one maximum-security court at Guantánamo’s Camp Justice where the cases of former CIA prisoners can be heard.

Pohl had scheduled a hearing in the Nashiri case for Aug. 4-8. It was unclear Thursday whether the new judge would adhere to that timetable, said Army Lt. Col. Myles Caggins III, a Pentagon spokesman.

Pohl also scheduled a hearing in the Sept. 11 case for the following week, Aug. 11-15.

About Abd al Rahim al Nashiri

Born: Jan. 5, 1965 in Mecca, Saudi Arabia.

Captured: October 2002, United Arab Emirates.

Arrived Guantánamo: September 2006, after waterboarding in secret CIA prison.

Profession: Told a 2007 military review that he was a merchant in Mecca who by 19 was a millionaire. CIA profile released by the White House in 2006 said he was al-Qaida operations chief in the Arabian Peninsula at time of his capture.

Paramilitary background: CIA profile said he fought in Chechnya and Tajikistan and trained at the Khaldan camp in Afghanistan in 1992.


The 8,300-ton warship is based in Norfolk, Va. It was commissioned, a formal ceremony, at Port Everglades in 1996.

It was on a refueling stop in October 2000 when two al Qaida suicide bombers drove a bomb-laden boat into the side, killing themselves and ultimately claiming the lives of 17 Americans. They were:

Hull Maintenance Technician 2nd Class Kenneth Eugene Clodfelter, 21, of Mechanicsville, Va.

Electronics Technician Chief Petty Officer Richard Costelow, 35, of Morrisville, Pa.

Mess Management Specialist Seaman Lakeina Monique Francis, 19, of Woodleaf, N.C.

Information Systems Technician Timothy Lee Gauna, 21, of Rice, Texas

Signalman Seaman Cherone Louis Gunn, 22, of Rex, Ga.

Seaman James Rodrick McDaniels, 19, of Norfolk, Va.

Engineman 2nd Class Marc Ian Nieto, 24, of Fond du Lac, Wis.

Electronics Warfare Technician 2nd Class Ronald Scott Owens, 24, of Vero Beach.

Seaman Lakiba Nicole Palmer, 22, of San Diego.

Engineman Fireman Joshua Langdon Parlett, 19, of Churchville, Md.

Fireman Patrick Howard Roy, 19, of Keedysville, Md.

Electronics Warfare Technician 1st Class Kevin Shawn Rux, 30, of Portland, N.D.

Mess Management Specialist 3rd Class Ronchester Manangan Santiago, 22, of Kingsville, Texas.

Operations Specialist 2nd Class Timothy Lamont Saunders, 32, of Ringgold, Va.

Fireman Gary Graham Swenchonis Jr., 26, of Rockport, Texas.

Ensign Andrew Triplett, 31, of Macon, Miss.

Seaman Craig Bryan Wibberley, 19, of Williamsport, Md.

Source: Defense Department, Miami Herald records

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