War court judge orders Pentagon to replace USS Cole trial overseer

Air Force Col. Vance Spath is the military judge presiding at the accused USS Cole bomber’s trial at Guantánamo Bay, Cuba. He is also chief of the Air Force judiciary.
Air Force Col. Vance Spath is the military judge presiding at the accused USS Cole bomber’s trial at Guantánamo Bay, Cuba. He is also chief of the Air Force judiciary.

The military judge presiding at the USS Cole death-penalty trial ordered the Pentagon to replace the senior official and his staff overseeing the war-court process, ruling a since-revoked requirement for judges to live at Guantánamo until a trial is over appeared to be unlawful meddling.

Air Force Col. Vance Spath, the judge, issued the ruling in court Monday following a week of hearings that showed behind-the-scenes planning at the Pentagon on how to perhaps replace military judges and speed along the pretrial process.

Prosecutors defended the planning by the legal staff of the so-called convening authority for military commissions, retired Marine Maj. Gen. Vaughn Ary, as routine brainstorming on resourcing of the war court.

Defense lawyers called the move-in order illegal, a crime in military justice called “unlawful command influence,” that was designed to unfairly rush the death-penalty trial of Saudi captive Abd al Rahim al Nashiri, 50, as the alleged mastermind the USS Cole bombing.

They wanted the judge to dismiss the case. But while Spath was still taking evidence, Deputy Secretary of Defense Robert O. Work quickly revoked the controversial order — meaning judges hearing war-crimes cases now may keep their prestigious regular duties and simultaneously preside at Guantánamo military commissions cases.

Spath, in court Monday, called dismissal “not appropriate” in this instance. Instead, he disqualified Ary and four lawyers who worked on the move-in requirement: retired Army Col. Mark Toole, Army Reserves Lt. Col. Alyssa Adams, Navy Reserve Cmdr. Raghav Kotval, and Army Capt. Matthew Rich.

He ordered the Pentagon to replace them in the USS Cole case — meaning a new convening authority would fund and assign Nashiri’s legal-team resources and pick the pool of military officers for his eventual jury.

Spath also cut an upcoming two-week pretrial hearing at Guantánamo back to just one week, he said, to demonstrate “this detailed trial judge feels no pressure to accelerate the pace of this litigation.”

Seventeen sailors died in al-Qaida’s Oct. 12, 2000 suicide attack, and prosecutors want Nashiri executed if he’s convicted. The case has gone on for years, in part, because the CIA spirited Nashiri off to four years of secret detention — where he was waterboarded and subjected to rectal rehydration and a mock execution.

Monday, Spath bristled at the notion that pretrial hearings could be accelerated.

“This is a complicated international terrorism case under a relatively new statutory scheme with an unprecedented amount of classified evidence,” he said.

In last week’s hearings, Nashiri’s attorneys uncovered a plan to relieve Spath of his Guantánamo cases and leave him in his full-time duties as chief of the Air Force Judiciary — a behind-the-scenes development that Spath said was particularly troubling.

Ary had staff crunch costs of conducting commuter hearings here at remote Camp Justice — flights, translators, etc. — and figured that 34 days of hearings in 2014 cost $2,294,117 million for each day the court was open. That works out to $458,823 an hour on mostly tangential pretrial issues — or $7,647 a minute.

Staff also tallied how many hours each judge spent on the bench at Guantánamo.

Three judges are hearing three terror cases:

▪ Army Col. James L. Pohl, presiding in the Sept. 11 capital murder conspiracy trial of Khalid Sheik Mohammed and four alleged accomplices. He ruled without taking testimony last week that there was an appearance of unlawful interference. He had halted proceedings and threatened more action until the Pentagon revoked the move-in order.

▪ Judge Spath in the USS Cole case, who said Monday that Work’s revocation of the relocation rule was not a sufficient remedy. He said the attempted effort of unlawful influence appeared to “cast a cloud” over the independence of the judiciary but did not succeed because he would allow no one to rush him. Ary’s role, he ruled, is to resource the judiciary — “most certainly not an entity that sets the pace of litigation.”

▪ The non-capital prosecution of Abd al Hadi al Iraqi, who is accused of commanding al-Qaida forces that allegedly committed war crimes while resisting the 2001 U.S. invasion in Afghanistan. Hadi’s judge, Navy Capt. J.K. Waits, has listed the unlawful-influence question, and whether to dismiss the case, as first up on the docket of his next hearing, March 23.

Hadi’s lawyers were watching Spath’s decision to see what, if any, remedy they would seek from their Navy judge who is based in Naples, Italy, and commutes to Cuba to preside in the case.

It was disclosed over the weekend that Waits has lifted an order on the prison forbidding female troops from touching Hadi, a development that, like the move-in order, had stirred controversy.

Spath’s move rejecting a “convening authority” has precedent in the war court that President George W. Bush built and President Barack Obama reformed.

In 2008, before the reforms, a Navy judge in the case of Osama bin Laden’s driver disqualified the then-military commissions legal adviser, Air Force Brig. Gen. Thomas W. Hartmann, as not being fair and balanced. The legal adviser in that version of the war court had some of the duties of the current convening authority.

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Verbatim | Judge Vance Spath

▪ “There is no doubt the action of the convening authority and his legal advisors at a minimum appeared to attempt to unlawfully influence the military judge in this proceeding.”

▪ “To ensure all taint from unlawful influence is expunged, the trial judge needs to affirmatively demonstrate there is no pressure to accelerate the pace of litigation or succumb to pressures of any convening authority. To demonstrate this, any potential evidentiary session this week is postponed until at least our next session on the record.”

▪ “The appearance of unlawful command influence is as devastating to the military as the actual manipulation of a given trial. Thus, the resolution of an issue involving unlawful command influence, once it has been raised, is insufficient if it fails to take into full consideration even the mere appearance of unlawful command influence.”

▪ “The government called no witnesses and they offered no additional documentary evidence. The government did not marshall any evidence to disprove the facts or their consequences if implemented.”

▪ “Dismissal with or without prejudice is a drastic remedy, and it's not appropriate at this juncture. Lesser measures can be taken to remove the taint of unlawful influence from this military commission.”

Source: War court transcript

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