In an abrupt retreat Friday, the Pentagon revoked an order to war court judges to drop their other military duties and take up residence at this remote base until their cases are over.
The 9/11 case judge swiftly responded by lifting a freeze on preparations for the terror trial of alleged mastermind Khalid Sheik Mohammed and four accused accomplices. The judge had imposed the freeze 48 hours earlier with a ruling that found the move-in order appeared to be an illegal bid to rush justice.
Defense lawyers in the Sept. 11 and USS Cole death-penalty cases described the Jan. 7 relocation order as “unlawful influence,” a pressure play designed to exile military judges to the remote base in Cuba, cut short pretrial hearings and move straight to trial. Commanders meddling in the judicial function is a crime in the U.S. military.
The about-face also averted testimony in the USS Cole bombing case by three three-star officers, the top lawyers of the Navy, Army and Air Force, on how the Pentagon order to move the judges took them by surprise — and its impact.
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But it did not settle the conflict. Defense lawyers for Saudi Abd al Rahim al Nashiri, 50, argued that the way the order was adopted and withdrawn was illegal.
They asked the judge, Air Force Col. Vance Spath, to dismiss the death-penalty charges against Nashiri, who is accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing off the coast of Yemen. Seventeen U.S. sailors were killed and dozens more wounded in the warship attack.
Alternatively, Nashiri’s lawyers asked the judge to exclude from the case the architect of the move-in order — retired Marine Maj. Gen. Vaughn A. Ary, as well as his legal staff, who oversee the war court in the so-called Office of the Convening Authority. The new Secretary of Defense, Ash Carter, should replace them with officials untainted by the relocation order, said Nashiri’s civilian lawyer, Rick Kammen.
Ary “can’t be trusted” to act impartially, said Kammen, noting Ary’s role includes funding the defense and choosing the jury pool of U.S. military officers — Kammen called it driving “the death train” by handpicking “the people that he wants to kill Nashiri.”
Prosecutors said, with the move-in order gone, the issue was over. They urged Spath to drop it. “We get that there is an appearance issue,” said the chief war crimes prosecutor, Army Brig. Gen. Mark Martins. “We all are guardians. The independence of the judiciary is at the heart of this.”
Spath disagreed. Testimony earlier this week by Ary, the judge said, demonstrated there was “some evidence of unlawful influence.” Spath never dropped his other duties and never moved to this base. But hearing evidence this week disclosed a behind-the-scenes plan to remove Spath from the USS Cole case rather than relieve him of his other job as chief of the Air Force judiciary.
Ary undertook this change “knowing it could remove a sitting trial judge,” said Spath, adding he would rule Monday morning on the defense motion to dismiss the charges.
The move-in order stirred controversy soon after Deputy Secretary of Defense Robert Work adopted it Jan. 7.
The Sept. 11 case judge, Army Col. James L. Pohl, halted the proceedings this week, and said he wouldn’t resume them until the Pentagon lifted the move-in order. He said it appeared to constitute improper pressure on the judiciary to speed justice along.
Friday afternoon, a USS Cole prosecutor, Navy Lt. Paul Morris, announced in court that Pohl had lifted his freeze.
Work reversed himself with a single paragraph order Thursday night. He instructed the war court overseer to collaborate “as appropriate” with the military’s top lawyers and the war court judiciary on any proposed war court changes.
“Any such regulations must preserve the independence of the military commission judiciary in both fact and appearance,” Work wrote.
On Friday, his spokeswoman issued a statement defending the reversal as “intended to support the Military Commissions in carrying out their mission to resolve their cases in a manner consistent with the interests of justice.”
Lt. Cmdr. Courtney Hillson said Work “continually reviews” aspects of the war court’s “policy processes and personnel” to make sure it’s “conducted in a fair and just manner.”
Prosecutors had defended the order Ary designed as part of an effort to improve resourcing at the crude compound here called Camp Justice. That order stripped military judges hearing Guantánamo cases of their other duties, including presiding at U.S. service members’ courts martial, without consultation with the top lawyers of the Army, Navy and Air Force.
None of the judges obeyed it pending clarifications from their overall commanders, called The Judge Advocates General.
No one else on the war court staff was to move down. Just the judges.
Spath ridiculed the idea, asking prosecutor Morris what would happen “when I wake up to an empty courtroom and want a hearing.”
Morris said the Pentagon would mount a flight to bring him his staff and attorneys.
“Why wouldn’t I get on the same airplane?” Spath wondered.
The development came as defense lawyers were poised to take sworn testimony about the rule from the so-called TJAGs — the military services’ three top uniformed lawyers. They were not consulted on the sudden change to war court procedures, and neither was the chief of the Guantánamo judiciary, Pohl.
Spath canceled the testimony over the protests of Nashiri’s lawyers. Navy Cmdr Brian Mizer, a defense lawyer, said Air Force Lt. Gen. Christopher Burne, the judge’s boss, would have testified that he intended to remove Spath from the presiding at the Cole case.
Spath is himself presiding at an airman’s double murder case during downtime in the on-again, off-again Nashiri pretrial proceedings.
Mizer quoted Burne as telling a defense lawyer in that case, Air Force Lt. Col. David Frakt, that he would choose traditional military justice over the war court case because he “can’t have Colonel Spath sitting at Guantánamo looking at iguanas.”
No trial dates have been set in either the 9/11 or USS Cole cases.
Preparations have slowed over defense requests related to the captives’ three and four years in secret CIA detention, where several of the accused were waterboarded, at least one was subjected to a mock execution and at least three were subjected to rectal rehydration.
Nashiri was arraigned earlier than the accused Sept. 11 plotters but his case has been slowed by an ongoing prosecution appeal of Spath’s decision to throw out a portion of the case involving al-Qaida’s 2002 attack on the oil tanker Limburg.
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Effective immediately I rescind Change 1 of the Regulation for Trial by Military Commission (R.T.M.C.) originally issued on 7 January 2015. Under the authorities of the Secretary or his designee to promulgate regulations governing military commissions, I hereby further direct the Office of the Convening Authority to coordinate with the Office of General Counsel, various DoD components, the Judge Advocates General, and the military commission trial judiciary, as appropriate, concerning whether amendments to the existing regulation or additional regulations would further the interests of justice in current and future Military Commission cases. Any such regulations must preserve the independence of the military commission judiciary in both fact and appearance.
Robert O. Work
Feb. 26, 2015