Amid War-Court Turmoil, Guantánamo Death-Penalty Judge Retires From Military Service

The U.S. Air Force has announced that the Guantánamo mil­i­tary commission’s USS Cole death-penal­ty judge, Air Force Colonel Vance Spath (pic­tured) is retir­ing, inject­ing new uncer­tain­ty into war court pro­ceed­ings already steeped in chaos. In a one-sen­tence email to the McClatchey news ser­vice on July 5, an Air Force spokesper­son con­firmed that Spath ​“has an approved retire­ment date of Nov. 1, 2018,” well before the con­tro­ver­sial tri­al pro­ceed­ings in the cap­i­tal pros­e­cu­tion of Abd al Rahim al Nashiri are expect­ed to begin. 

Nashiri is accused of orches­trat­ing the October 2000 attack on the U.S. Navy destroy­er USS Cole that killed 17 American sailors, but his for­mer lawyers describe him instead as an intel­lec­tu­al­ly lim­it­ed al-Qaeda foot sol­dier. Presenting evi­dence that the CIA admit­ted­ly sub­ject­ed Nashiri to 14 years of ​“phys­i­cal, psy­cho­log­i­cal and sex­u­al tor­ture,” those lawyers unsuc­cess­ful­ly chal­lenged Nashiri’s mil­i­tary deten­tion and U.S. gov­ern­ment efforts to try him in a mil­i­tary tri­bunal rather than in a civilian court. 

In October 2017, Brigadier General John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, found ​“good cause” to per­mit the entire civil­ian defense team assigned to Nashiri’s case to with­draw amid alle­ga­tions that the gov­ern­ment had been illic­it­ly eaves­drop­ping on priv­i­leged attor­ney-client legal meet­ings. At the time, Baker advised war court defense attor­neys that he had lost con­fi­dence in the integri­ty of ​“all poten­tial attor­ney-client meet­ing loca­tions” at Guantánamo. 

In November 2017, Spath con­vict­ed Baker of crim­i­nal con­tempt and sen­tenced him to 21 days of con­fine­ment for allow­ing the res­ig­na­tions. After two days of con­fine­ment, Harvey Rishikof, who served as the Convening Authority of all of the Guantánamo tri­bunals, released Baker from con­fine­ment, and a fed­er­al court lat­er over­turned Baker’s contempt conviction. 

The civil­ian res­ig­na­tions left Nashiri rep­re­sent­ed by a sin­gle mil­i­tary lawyer, Lieutenant Alaric Piette, who had grad­u­at­ed law school only five years ear­li­er, does not meet the American Bar Association stan­dards for death-penal­ty defense, and has nev­er tried any mur­der case. During a January 2018 pre­tri­al hear­ing in the case, Spath crit­i­cized Piette for seek­ing a con­tin­u­ance in the case until expert death-penal­ty co-coun­sel could be appoint­ed, telling Piette to ​“engage in self help” by attend­ing spe­cial train­ing to become ​“more com­fort­able han­dling cap­i­tal mat­ters.” Media reports described an exas­per­at­ed Spath as hav­ing deliv­ered ​“a 30-minute mono­logue” express­ing frus­tra­tion over hav­ing his orders ignored, alleged inac­tion by Pentagon offi­cials to help him return civil­ian coun­sel to the case, and uncer­tain­ty over his author­i­ty raised by Baker’s actions. 

In ear­ly February, U.S. Secretary of Defense Jim Mattis fired Rishikof with­out expla­na­tion, rais­ing con­cerns of polit­i­cal inter­fer­ence in the already tumul­tuous legal pro­ceed­ings. Then, on February 16, Spath halt­ed all pre­tri­al pro­ceed­ings in the USS Cole case indef­i­nite­ly. ​“We’re done until a supe­ri­or court tells me to keep going,” he said. Spath said at the time that he was con­sid­er­ing retir­ing from the Air Force.