A retired Marine general — whose attempt to move military judges to Guantánamo slowed rather than quickened the Pentagon’s war crimes tribunals — is resigning his job as overseer of the war court, a military spokesman said Wednesday.
Retired Marine Maj. Gen. Vaughn A. Ary held the title of Convening Authority for Military Commissions for less than six months.
He was being replaced, in an acting capacity, by the Navy’s top lawyer, General Counsel Paul Oostburg Sanz — who also held the job in an acting capacity for about 19 months prior to Ary.
A Pentagon spokesman, Army Lt. Col. Myles B. Caggins III, said Oostburg Sanz will serve until the Secretary of Defense, Ash Carter, names a new permanent war court overseer.
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The Convening Authority, who draws up a pool of would-be jurors of U.S. military officers, also approves charges and expenses of the war court cases, which as of this week numbered three active prosecutions of seven of Guantánamo’s 122 prisoners.
Five of them, including Khalid Sheik Mohammed, face death-penalty charges as the alleged 9/11 plotters. Abd al Rahim al Nashiri, a Saudi accused of masterminding the 2000 USS Cole attack, is also in capital pretrial proceedings. Separately, Abd al Hadi al Iraqi, an alleged former al-Qaida commander, awaits a non-capital trial.
On Tuesday, the Pentagon abruptly and without explanation canceled plans to hold hearings in the Hadi case next week. In it, defense attorneys sought a finding of unlawful influence by Ary and his disqualification from the case of the Iraqi accused of commanding al-Qaida forces that carried out war crimes between 2002 and 2004 in Afghanistan.
At issue was a short-lived Pentagon order requiring military judges hearing active war crimes prosecutions to quit their primary duties and move to Guantánamo until their trials were complete.
Ary advocated the change in December and Deputy Defense Secretary Robert O. Work adopted it within a month. But none of the judges moved because their separate services — the Army, Air Force and Navy — did not issue them change of duty station orders.
All three cases are in lengthy pretrial proceedings, with no trials imminent — and defense lawyers argued that the officials were seeking to unlawfully rush justice by effectively exiling judges to empty courtrooms.
Work revoked the order earlier this month after Army Col. James L. Pohl, the judge in the Sept. 11 case, concluded it had the appearance of unlawful influence. Pohl froze all proceedings and threatened further action.
The USS Cole case judge, Air Force Col. Vance Spath, had Ary testify as a witness on the plan as meant to hasten the cases to trial, then disqualified Ary and four members of his staff from any further involvement.
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, Spath ruled, is to resource the judiciary — “most certainly not an entity that sets the pace of litigation.”
Hadi’s lawyers were preparing for an evidentiary hearing on the same issue when the Pentagon abruptly canceled next week’s hearing before Navy Capt. J.K. Waits, who had put the unlawful influence question at the top of his docket.
Hadi’s lawyer, Marine Lt. Col. Tom Jasper, said his team got no explanation for the “surprise” development. “We were prepared to fully litigate our position that actual unlawful influence was committed by the Convening Authority in our case,” he said by email soon after the hearing was canceled.
A Pentagon statement Wednesday describing Ary’s “voluntary resignation,” effective Saturday, did not mention the cancellation of the Hadi hearing.
It quoted Work as calling Ary “a recognized expert on military law” and thanking him for “his leadership, service and dedication.”
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