A Pentagon order reassigning military judges to remote Guantánamo for the duration of their war crimes trial is already reverberating in the traditional military justice system.
On Thursday, the defense lawyer for an airman awaiting a capital court martial in Georgia asked the case judge, Air Force Col. Vance Spath, to step down from the death-penalty trial in a court filing that calls a Jan. 7 Pentagon order requiring military judges to put the war court first unprecedented.
Spath, chief of the Air Force judiciary, is also presiding at pretrial hearings in the USS Cole bombing case. A Saudi, Abd al Rahim al Nashiri, is accused of orchestrating al-Qaida’s Oct. 12, 2000 suicide bombing of the warship off Yemen that killed 17 U.S. sailors. The Pentagon prosecutor is seeking the death penalty.
Spath has not set a date for Nashiri’s trial by military commission. The prosecution is appealing Spath’s dismissal of some charges. Meantime, the judge has ordered an assessment of the impact of the release of a portion of the so-called Senate Torture Report, in which Nashiri figures. And Nashiri’s lawyers are still seeking to uncover case evidence, called pre-trial discovery.
At the same time, Spath, as one of the few death-penalty experienced judges in the military, has assigned himself to preside at the capital court martial of Senior Airman Charles A. Wilson III, at Warner Robins Air Force Base, Georgia. Wilson, 27, is accused of killing his 81/2-month pregnant fiancee, 30-year-old Tameda Ferguson, and their unborn child in August 2013.
Wilson’s lawyer, Air Force Reserve Lt. Col. David Frakt, said Thursday that he wasn’t challenging Spath’s “impartiality” in his two-page motion that asks the judge to quit the Wilson case. Instead, he wrote that the new ‘Guantánamo-first’ rule means that Spath “must disqualify himself, unless and until he is recused, replaced or otherwise relieved from his military commission judicial duties.”
“It is not immediately apparent to me that a military commission should take higher priority over a capital-referred Air Force murder case,” Frakt said by email Thursday. Wilson has been jailed for 16 months and has a tentative trial date, June 22, he added. Frakt has also served as a defense lawyer in a Bush-era military commission case, that of the detention center’s lone convict, Ali Hamza al Bahlul, serving life in prison as an al-Qaida propagandist.
At the Air Force Judge Advocate General’s office, spokesman Maj. Colin “Pete” Hughes said Friday that Deputy Secretary of Defense Robert Work’s order had not yet been implemented.
He would not specify whether Spath’s boss, Lt. Gen. Christopher Burne, the Air Force Judge Advocate General, was relieving his chief of the Air Force judiciary and reassigning him to the U.S. Navy base in southeast Cuba.
“The Air Force Judge Advocate General's Corps is working with the other Service Judge Advocate Generals and the Commission to implement these changes as we continue to provide military judges to this critical mission,” Hughes said in an email statement.
“While we work the details of implementation, Col. Spath remains the Chief Trial Judge” of the U.S. Air Force Judiciary.
Frakt said earlier that his motion might cause Work “to clarify his intent” in issuing the order.
The airman accused of murder “deserves to have a judge that is able to give his undivided attention to the many complex and weighty issues in his case, and is not distracted by the politics of military commissions or the logistics of relocating to Guantánamo,” Frakt added.
As judge in the case, Spath will get to decide whether to exclude himself.
Friday, he set March 9 for a pretrial hearing, including the motion to recuse himself, at a courtroom in Georgia.
According to the Pentagon’s war court calendar, that’s the Monday after a two-week period that Spath blocked out for a pretrial hearing in the Nashiri case that starts Feb. 23.
Meantime, in the Guantánamo court, Nashiri’s lawyers are asking Spath to issue an order to help them gather evidence of what went on behind the scenes in the Guantánamo-first regulation proposed Dec. 9 by the senior Pentagon official overseeing military commissions, retired Marine Maj. Gen. Vaughn Ary.
Nashiri’s lawyers argue in their own court filing that the regulation, in seeking to confine judges to the base in Cuba until they bring the cases to trial and conclusion, constitutes unlawful meddling in the ostensibly independent war court process.
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Judge Vance Spath presiding
Feb. 23-March 6: Two-week docketed hearing at Guantánamo Camp Justice on pretrial motions in the Abd al Rahim al Nashiri military commission.
March 9: One-day hearing in Georgia courtroom on pretrial motions in the U.S. Air Force senior airman Charles Wilson capital court-martial.
April 6-17: Next docketed USS Cole case hearing at Guantánamo.
June 22: Tentative Wilton court martial date