The judge in the trial of the man accused of planning the bombing of the USS Cole on Friday shut down the proceedings because of his inability to get defense lawyers back to the death-penalty case.
Air Force Col. Vance Spath has for months now disagreed with the chief defense counsel for Military Commissions, Marine Brig. Gen. John Baker, over the general’s decision and authority that released three lawyers of record from the case in October when they asked to resign over an ethical issue.
On Nov. 1, after Baker refused to return veteran death-penalty defender Rick Kammen and civilian attorneys Rosa Eliades and Mary Spears to the case, the judge sentenced the general to 21 days of confinement in his quarters for disobeying an order.
Friday morning, on the last day of a weeklong hearing in which Eliades and Spears ignored prosecution subpoenas to appear at court by video feed, Spath assembled defense and prosecution attorneys in the court and offered a 30-minute monologue.
He listed his frustrations at having his orders ignored, uncertainty over his authority raised by the Marine general’s decision-making and inaction by Pentagon officials to help him. At one point he said he was considering retiring from the Air Force, then declared that he needed clear answers on how to proceed.
“I am abating these proceedings indefinitely,” he said twice, at one point adding: “We’re done until a superior court tells me to keep going.”
He then walked off the bench at 10:12 a.m., declaring: “We are in abatement. We are out. Thank you. We’re in recess.”
The man accused of orchestrating al-Qaida’s Oct. 12, 2000, bombing of the Navy warship off Yemen that killed 17 American sailors was not in court. Spath ruled, before abating, that Abd al Rahim al Nashiri had voluntarily waived his attendance, even though the Saudi prisoner had asked a prison lawyer about that day’s mode of transportation to the war court compound, Camp Justice.
Cole bombing survivor Joe Pelly, a retired senior chief petty officer who suffers post-traumatic stress to this day, took to Twitter to declare himself sickened by the development.
On base, another blast survivor, retired Command Master Chief James Parlier, and the father of a 19-year-old sailor who was killed in the suicide bombing, were apparently too shaken up Friday to comment.
Nashiri’s military defense attorney, Navy Lt. Alaric Piette, said Friday that “ the best move for the country and for justice is for the government to withdraw the charges.”
Piette, a former SEAL turned lawyer, said “sending him home to rehabilitation in Saudi Arabia would be the right thing to do. The guy is not a threat to anybody.” Piette added that as a defense attorney he doubts people will believe him, but “as a defense attorney I make it a point not to say things that aren’t true.”
Baker, the chief defense counsel, says that the war court rules invest in his job the authority to release attorneys of record from ongoing cases “for good cause.” That’s what he did in October, based on his knowledge of classified information and an independent legal ethics expert’s opinion.
An underlying issue was the judge’s refusal to let defense lawyers pursue an inquiry into something classified that Kammen discovered during a meeting last summer with Nashiri in a site set up for USS Cole defense teams to meet. Whatever it was, it led defense attorneys to believe their privileged attorney-client conversations were monitored, which would violate professional obligations of confidentiality. So they quit.
Spath ruled there was no intrusion of the meetings, and said they couldn’t quit without his permission.
“We need somebody to tell us, ‘Is that really what that says despite every other court system in America thinking differently?’ ” Spath said Friday. “We need action from somebody other than me. And we’re not getting it.”
A day earlier, the judge questioned senior career Department of Defense lawyer Paul Koffsky by video link from the Pentagon about his supervisory role regarding the office of war court defense lawyers — and Koffsky replied that he had no authority to order war court defense attorneys to do anything, or to intervene in the resignations.
Spath then said in open court he was considering calling Secretary of Defense Jim Mattis to testify.
Spath said repeatedly over two days that the military commission’s process was at risk of being infected by defense defections if nobody stepped in. He accused Pentagon-paid defense attorneys of working to “undermine a process” they had agreed in writing to work within by honoring the rules that govern them.
He said Friday morning he made the decision to stop the trial after a sleepless night and a walk on a treadmill to “calm me down.” He said he debated “for hours” whether to dismiss the case, then chose not to do it because it would be “rewarding the defense for their clear misbehavior and misconduct.”
He then talked at length about when people in the military can lawfully defy orders and said it did not apply to his decision-making in the Nashiri case.
“I hope cool minds reflect on what my orders have been. I’m not ordering the Third Reich to engage in genocide,” he said. “This isn’t My Lai,” a reference to the 1968 massacre of villagers in Vietnam by U.S. soldiers. He said parties to the court had a duty to comply with subpoenas, Bar rules and his orders. “Those are the extent of my orders. Not war crimes, people. It’s just stunning where we have come.”
The Chief Prosecutor, Army Brig. Gen. Mark Martins, did not respond to a request, submitted through a spokeswoman, on whether his office would or could appeal the abatement.
Meantime, the Saudi is held as a law-of-war detainee at the base’s most mysterious lockup, Camp 7, which houses both captives facing war crimes trials and uncharged war prisoners.
A war court spokeswoman, Navy Cmdr Sarah Higgins, said in a statement Friday afternoon: “The government is studying transcripts from this week in which the judge made important findings and rulings. All appropriate actions will be taken.”