In a worsening dispute over the prison commander’s decision to withdraw fast boat services for war court judicial staff crossing Guantánamo Bay, the judge in the USS Cole case abated the proceedings on Friday and the Sept. 11 judge canceled this month’s hearing.
The issue on the surface sounds frivolous: War court judges had for years used a separate Coast Guard security unit to whisk them across the bay. It kept them apart from terror victims and their families, prosecutors and defense lawyers as well as news reporters in a specific system of self sequestration.
Then Rear Adm. Edward Cashman, the current prison commander, withdrew the separate service, citing a new prison policy that alternately cited realignment of resources and ethical considerations. That meant judges would join everyone else who arrived on a Pentagon war court charter flight from Washington, D.C., on a ferry crossing the bay.
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But both Army Col. James L. Pohl and Air Force Col. Vance Spath, the judges in the 9/11 and USS Cole death penalty cases, saw it as the prison encroaching on their long established procedures to segregate themselves from others headed to court sessions.
At this remote, 45-square-mile base it has been possible to see the judges shopping in the commissary, working out at the gym or eating in the main Navy base dining room. But they clearly have kept to themselves, surrounded by their staff and unwilling to make small talk.
Aboard the war court charter flights, the Pentagon gives the victims of terror attacks and their families first-class seats when they travel to this base to watch the hearings. On occasion the judges sit in a section of the first-class cabin, too, or at the front of coach class directly behind them, similarly surrounded by their staff.
In two lesser cases this week and last, court support staff put other military judges in a minivan for the 20-minute ferry crossing — in sight of the other war court travelers but, because ferry workers permitted their drivers to keep the air conditioning running, out of earshot.
In the Sept. 11 case, the prosecutor’s office asked the judge to reconsider his decision to freeze the proceedings in a formal filing on Wednesday. “The U.S. government is still getting him to his courtroom and his office,” Deputy Chief Prosecutor Army Col. Robert Moscati said Friday. “We don’t see the issue of commingling in the same way as the judge.”
Instead, Pohl rejected the motion to reconsider — and canceled the next pretrial hearing, July 17-21, in the case against five men accused of plotting the Sept. 11, 2001, attacks that killed nearly 3,000 people in New York, at the Pentagon and at a Pennsylvania field.
Attorney Walter Ruiz, who has been seeking a separate, sooner trial for alleged 9/11 plotter Mustafa al Hawsawi, expressed disgust at the reason for a delay.
“Of all the issues that have been presented that truly raise meaningful threats to fundamental fairness and due process,” Ruiz said, “he chooses to take a position on his boat.”
Soon after, Spath froze the death-penalty proceedings against alleged USS Cole bomber Abd al Rahim al Nashiri over the same issue, according to three attorneys who saw the order. “He’s just abated. Nothing’s canceled yet,” said Rick Kammen, Nashiri’s death penalty defender. The next hearings in that case are scheduled for the week of July 31.
The struggle for resources comes after Pohl has in successive public hearings complained about inadequate resourcing for what are envisioned to be many months of long military tribunals in both capital cases, which share a common courtroom.
In January, the base commander, Navy Capt. David Culpepper, canceled reservations for accommodations for the judge and his staff — but left intact special, separate Navy base lodgings for Sept. 11 victims’ families.
That meant the judges would move into a trailer park near the crude war court compound, rugged housing also used by the prosecution and defense staff, including the two generals who lead them. The reservations were restored before Pohl took action in the case.
In a June 30 order, Pohl wrote that Cashman’s withdrawal of separate boat service “does not give even tacit recognition to the concern about compromising the independence of the military judge or his staff by exposing them to improper ex parte contact.”
Friday, he doubled down in rejecting the prosecution’s bid for reconsideration, saying separate boat service was part of the judge’s “inherent authority to take steps it deemed necessary to ensure a fair trial.” That doesn’t mean all trial preparations have to come to a halt, he added: “All other matters in this case, such as pleadings practice and discovery, can continue.”
As prison commander, Cashman controls an armed Coast Guard port security unit of several fast boats whose main mission is to patrol a portion of the waterfront opposite the 45-square-mile base for threats against the seaside prison complex. The base commander, Culpepper, has a separate fleet, including several utility boats that have been frequently used to ferry special guests across the bay.
That’s what happened Friday when Attorney General Jeff Sessions, his deputy Rod Rosenstein, National Intelligence Director Dan Coats and the Southern Command’s Adm. Kurt Tidd arrived on base on a special U.S. Air Force plane for a visit at the war court. They are the highest ranking members of the Trump administration to visit the base, and they took a special Navy base UBoat across the bay rather than the regularly scheduled ferry.
Friday, prison spokesman Cmdr John Robinson III said the war court judiciary did not ask for a different mode of separate transportation — like the UBoat — once Cashman canceled fast boat service. “We have not received any official requests from the judiciary for alternative transportation,” he said by email.