Guantánamo defense attorney: Emails portray Pentagon meddling in death-penalty trials

Retired Marine Maj. Gen. Vaughn Ary is the Pentagon’s Convening Authority for Military Commissions.
Retired Marine Maj. Gen. Vaughn Ary is the Pentagon’s Convening Authority for Military Commissions. DEPARTMENT OF DEFENSE

A USS Cole case defense attorney read aloud from just disclosed emails Tuesday in a ongoing bid to portray a recent order to war court judges to live permanently at Guantánamo as unlawful meddling meant to rush justice in the death-penalty case.

Navy Cmdr. Brian Mizer, defending Abd al Rahim al Nashiri, said the documents he got through a court order overnight demonstrated that the Pentagon office knew that the rule change adopted last month would not just make waves but could constitute the U.S. military crime of unlawful influence.

“In trying to speed up a trial, are we affecting its fairness?” wrote a legal adviser, Cmdr. Raghav Kotval, on the staff of the Convening Authority for Military Commissions. “If, for example, the judge is less inclined to grant a continuance because it means more time on Gitmo, is that adverse to the accused?”

The Nov. 14 email circulated among U.S. military legal staff reviewing a proposed war-court regulation for the Convening Authority, retired Marine Maj. Gen. Vaughn Ary, the Pentagon–based overseer of military commissions. Less than a month later, on Dec. 9, Ary formally asked Deputy Secretary of Defense Robert Work for the change. Work did just that on Jan. 7, ordering judges assigned to Guantánamo cases to give up their prestigious day jobs.

Defense lawyers cast the open-ended relocation order to judges living with family in more comfortable settings in Italy and the East Coast of the United States as punishment that exiles them for not proceeding swiftly through a complicated pretrial phase to trials. The 9/11 and USS Cole case judges have spent years navigating thorny pretrial issues — such as torture and secrecy, CIA involvement in the court and evolving war court law.

A case prosecutor, Navy Lt. Paul Morris, dismissed the documents as nothing more than routine “brainstorming of potential issues” among colleagues. Another prosecutor, Army Col. Robert Moscati, said there was no proof that their boss, Ary, knew of the reservations they raised.

Ary was scheduled to testify Wednesday by video-teleconference from his headquarters outside Washington, D.C.

In a filing, prosecutors defend the judge’s move-in order as simply surging staff to the war court for “the increased operational tempo that’s expected.”

The three war court judges hearing Guantánamo cases have not complied, in part, because the top lawyers in the Army, Navy and Air Force were taken by surprise by the decision that strips them of judges who handle the courts-martial of American service members, too.

Mizer cast Kotval as a potential whistleblower, and asked the judge to order his testimony along with that of two other U.S. military officers serving as Ary’s legal advisers in the email chain that received this from Kotval:

“Issue: Are we coercing or by unauthorized means influencing the action of a judge?” he wrote. “If not, why are we intruding on what is not typically or traditionally a convening authority’s role. What is the explanation for the action?”

Defense attorneys call the order an example of unlawful command influence — a crime in the U.S. military — designed to rush the judges to trial so they can leave this remote base. They want the case dismissed.

Nashiri, a 50-year-old Saudi, is accused of masterminding the al-Qaida suicide bombing that killed 17 U.S. sailors off the coast of Yemen, and the Pentagon prosecutor wants him executed if convicted.

But his trial has been mired in complex pretrial proceedings involving secrecy surrounding his 2002-06 detention in the CIA’s secret prison network before he was brought to Guantánamo for possible trial.

Judge Spath, for his part, sounded troubled that there was no wider consultation, for example with the top lawyers of the different services, before Ary went to the Deputy Secretary of Defense.

He left open the possibility that he might call some of the emailers in Ary’s office as witnesses — as well as the Army’s top lawyer, Lt. Gen. Flora Darpino, who according to another email that surfaced in the case was resisting the Pentagon order to provide judges to the war court declaring, “I can’t afford to lose them to Cuba.”

Spath said he was also troubled to see a staffer’s email declaring — “The judges and the defense are aligned on this issue” and “The judges don't want to move” — and wondered aloud if the junior lawyers on Ary’s staff got that impression from the boss.

Spath added that the question of “unlawful influence” could “permeate everything in a trial,” and that he would address nothing else at Guantánamo until the issue was resolved.

“I want to get you a ruling while we’re down here,” he said, “so we can all then go to our respective places and deal with whatever fallout that might bring.”

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