U.S. Military

Federal Appeals Court Strikes Two Years of Guantánamo Tribunal Decisions in USS Cole Case

A civilian federal appeals court has dealt another blow to the Guantánamo military commission death-penalty proceedings, striking more than two years of decisions in the USS Cole bombing prosecution of Abd Al-Rahim Hussein Muhammed Al-Nashiri because of a military judge’s undisclosed conflict of interest. Al-Nashiri faces capital charges for his alleged role in the suicide bombing attack on the USS Cole in Yemen in October 2000 in which 17 U.S. Navy sailors were killed and another 39 were injured.

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a writ of mandamus vacating all orders issued by Colonel Vance Spath (pictured) between November 19, 2015 and his retirement in 2018 because Spath had not disclosed to defense counsel that he had applied for employment with the Department of Justice (DOJ) as an immigration judge while continuing to preside over pretrial proceedings against Al-Nashiri, who is being prosecuted by the DOJ. During the time period in which he was seeking employment with the DOJ, Spath issued numerous oral rulings from the bench and more than 450 written orders. The panel wrote that “[r]equiring Al-Nashiri to proceed under the long shadow of all those orders, even if enforced by a new, impartial military judge, would inflict an irreparable injury unfixable on direct review. Al-Nashiri thus has no adequate remedy for Spath’s conduct other than to scrub Spath’s orders from the case at the earliest opportunity.” The court, which has appellate authority over the Guantánamo U.S. military commissions, also vacated all military appeals decisions by the United States Court of Military Commission Review involving orders issued by Spath.

The long-delayed Guantánamo military commission proceedings against Al-Nashiri have been beset by controversy. Captured in 2002, Al-Nashiri was subjected to 14 years of "physical, psychological and sexual torture" in secret CIA-run detention centers. His lawyers unsuccessfully sought to have him tried in civilian court rather than in a military tribunal as a result of the torture. In October 2017, after Spath refused to allow Al-Nashiri’s defense lawyers to investigate the discovery of eavesdropping devices in a meeting room reserved for attorney-client communications, his entire civilian legal team resigned from the case. Judge Spath then held Brigadier General John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, in contempt after Baker said he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo and refused to reverse his decision authorizing the defense team to withdraw. The civilian Convening Authority of the Guantánamo tribunals, Harvey Rishikof, then intervened to release Baker from detention. The resignations left Al-Nashiri's defense solely in the hands of a single military lawyer, Navy Lt. Alaric Piette, who had never tried a murder case. Spath repeatedly denied Piette’s request for a continuance until expert death-penalty counsel could be appointed, instead telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” Then, in February 2018, Spate indefinitely halted all pretrial proceedings in the case, and in July 2018 announced his retirement from military service. A Freedom of Information Act request by reporter Carol Rosenberg discovered that Spath had been seeking to become a DoJ immigration judge during this period.

In vacating Spath’s rulings, the federal appeals court wrote: “We do not take lightly the crimes that Al-Nashiri stands accused of committing. To the contrary, the seriousness of those alleged offenses and the gravity of the penalty they may carry make the need for an unimpeachable adjudicator all the more important.”

Chaos Continues in Guantánamo Death-Penalty Trial, As Another Military Judge Quits

The already chaotic Guantánamo death-penalty trial of Abd al Rahim al Nashiri, accused of orchestrating the October 2000 attack on the U.S. Navy destroyer USS Cole, hit another snag as the most recent judge assigned to preside over the controversial proceedings will be leaving the military and quitting the case. In a January 4, 2019 appellate pleading recently obtained by the McClatchy News Service, prosecutors advised the U.S. Court of Appeals for the District of Columbia Circuit that Air Force Colonel Shelley Schools (pictured), assigned in August 2018 as the third judge to preside over the USS Cole military tribunal, one month later accepted an offer to become an immigration court judge and “intends to retire from the military in the near future.” Schools’s retirement leaves the Guantánamo tribunal yet again without a judge to handle pretrial proceedings.

Schools was assigned the case after former judge and Air Force Colonel Vance Spath also retired from the military to become a civilian immigration judge. Spath’s retirement followed months of frustration over developments in Nashiri’s case. In October 2017, Nashiri’s entire civilian legal team resigned from the case, alleging that the government had illegally eavesdropped on their legal meetings, leaving Nashiri to be represented by a single military lawyer, Lieutenant Alaric Piette, who was five years out of law school and had never tried a murder case. In November 2017, Spath found Brigadier General John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, guilty of criminal contempt for allowing the resignations and sentenced him to 21 days of confinement. However, Harvey Rishikof, who at that time 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. Then, during a January 2018 pretrial hearing, Spath criticized Piette for seeking a continuance in the case until expert death-penalty co-counsel could be appointed, telling him 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” venting his 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 February 2018, Spath indefinitely suspended Nashiri’s trial because of the lack of counsel.

It is unlikely that Schools will preside over any developments in the USS Cole case before she joins the immigration court in the summer of 2019. The case is currently on appeal in federal court, where Nashiri’s lawyers are seeking to vacate the rulings made by Spath during a three-year period in which he secretly pursued appointment of the civilian immigration judge job at the Department of Justice (DOJ), while presiding over Nashiri’s military tribunal case, which was being handled by DOJ prosecutors.

The USS Cole case has been plagued by other controversies, as well. Nashiri’s lawyers previously challenged the constitutionality of his detention in military custody because the CIA admittedly subjected him to 14 years of "physical, psychological and sexual torture." They also unsuccessfully argued that he should be tried in civilian, rather than military, court.

A Veterans Day Review: Recent Cases Highlight Concerns About Veterans and the Death Penalty

As Americans become increasingly aware of the role of combat trauma in the development of Post-Traumatic Stress Disorder (PTSD) and other mental health disorders, the shift in public perceptions towards veterans suffering from these disorders has played out in the courts in recent death penalty cases. In 2018, at least four military veterans facing death sentences have instead been sentenced to life in prison, and another two veterans won relief in their death-penalty cases. One military veteran has been executed so far this year.

In January, retired Marine Corps Lieutenant General John Castellaw (pictured) wrote in support of exempting mentally ill veterans from capital punishment, saying, "we can do better at recognizing the invisible wounds that some of our veterans still carry while ensuring they get the treatment that they deserve and that we owe them for their sacrifice. ...[W]e can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness." Prosecutors and juries in Indiana, Florida, Colorado, and Virginia have considered the military service and service-related disorders of murder defendants and determined that life sentences were more appropriate than the death penalty. In the Virginia trial of Iraq war veteran Ronald Hamilton, his attorneys presented evidence that he had been a model soldier who had saved the life of a fellow serviceman, but faced PTSD-related disorders and a deteriorating family life when he returned home. At Glen Law Galloway's trial in Colorado, Denver public defender Daniel King presented four days of testimony about Galloway’s character and background, including how the former Army veteran “snapped” following the collapse of his relationship with his girlfriend. King argued, “Mr. Galloway is not just the worst thing that he’s done. He’s committed many acts of kindness, friendship, service, love and duty.” In May, prosecutors withdrew the death penalty in exchange for guilty pleas in two unrelated cases involving military veterans Darren Vann in Indiana and Esteban Santiago in Florida. Santiago faced federal charges for a mass shooting, but prosecutors agreed to a plea deal because Santiago, an Iraq war veteran, suffers from schizophrenia and auditory hallucinations, had unsuccessfully sought treatment and assistance from the Veterans Administration, and had been committed to a mental hospital because of the seriousness of his mental illness.

Two death-sentenced prisoners were granted relief this year as a result of failures by their defense counsel to investigate and present mitigating evidence related to their military service and their service-related mental health disorders. Andrew Witt, an air force veteran who had been on U.S. military death row, received a life sentence after a court found his attorneys ineffective for failing to present mitigating evidence that he had suffered a traumatic brain injury. Robert Fisher's death sentence was reversed by a Pennsylvania federal court in part because his lawyer did not investigate or present evidence related to his service in Vietnam. Fisher was a Purple Heart recipient who struggled with brain damage, drug abuse, and mental health problems after his service.

On July 18, Ohio executed Robert Van Hook, an honorably discharged veteran who was suffering from long-term effects of physical and sexual abuse as a child and untreated mental health issues at the time of the offense. Van Hook had been unable to obtain care for his mental health and addiction issues from veterans service agencies after his discharge.

A 2015 report by the Death Penalty Information Center, Battle Scars: Military Veterans and the Death Penalty, estimated that approximately 300 veterans are on death row across the United States, many suffering from mental illness caused or exacerbated by their military service.

Split Jury Spares Iraq-War Vet in High Profile Virginia Capital Case

A Virginia jury has spared the life of Iraq war veteran Ronald Hamilton (pictured, right, with his father) in the 2016 killings of his wife and a rookie police officer. The jury split 6-6 on whether to impose the death penalty for Hamilton's murder of his wife, Crystal Hamilton, but unanimously agreed to impose a life sentence for the death of Officer Ashley Guindon, who was killed while she responded to Crystal Hamilton's 911 call. Under Virginia law, the court must impose a life sentence if any of the jurors vote for life. At the sentencing phase of the trial, Hamilton's lawyers presented evidence of his possible posttraumatic stress disorder from two tours of duty in Iraq, emphasized his development into a model soldier who, as an Army sergeant, saved a colleague's life while they were under mortar fire, and presented testimony from his father, Ronald W. Hamilton, and other family members. During his testimony, the elder Ronald Hamilton—a retired police officer whose career included service at the White House and who served as the second-in-command of the Charleston, South Carolina police force—expressed his sympathy to the family of Officer Guindon and to the two other officers who were wounded. "I see the prosecutor’s side and defense side, and I can sit on either side. I feel the pain. I understand the duty," Hamilton testified. "If anyone in this courtroom had their relative sitting where my son was, they’d be asking for mercy," he said. As is often the case in capital trials of war veterans, the prosecution had attempted to convert Hamilton's military service into an aggravating factor, repeatedly referring to him as "depraved" and "dangerous." Prosecutor Richard Conway told the jury that soldiers "deserve respect and deserve protection, but they don't get a pass for capital murder," while his co-counsel, Matthew Lowery urged the jury to "[p]ut him in the grave because that's what he deserves."

No Virginia jury has imposed a death sentence since 2011 and Hamilton had offered to plead guilty in exchange for a sentence of life without parole. However, Prince William County Commonwealth's Attorney Paul Ebert – known for his frequent use of the death penalty – rejected the offer. The county is responsible for more executions since 1976 than any other county in the Commonwealth and is among the 2% of counties that account for a majority of all executions in the United States in that period.

Military Commission Bars Guantánamo Death-Penalty Prosecutors From Using Statements by 9/11 Detainees

A Guantánamo military commission judge has barred prosecutors from using statements five accused 9/11 plotters made to the FBI after they had been subjected to years of torture in CIA black sites. On August 17, 2018, the military judge, Army Colonel James L. Pohl (pictured), suppressed all use of the statements, ruling that restrictions prosecutors had placed on the ability of defense counsel to interview witnesses and investigate the torture made it impossible for the defense to meaningfully challenge the statements’ voluntariness and reliability. The defendants—including alleged attack mastermind Khalid Shaikh Mohammed—had been tortured over the course of three to four years of CIA interrogation in secret locations. The torture involved physical, sexual, and psychological abuse, including waterboarding; sleep deprivation; slamming the captives’ heads into walls; suspending them, shackled, in painful positions; forcing them to remain nude or to wear diapers; and rectal abuse. A 2014 report on CIA interrogations by the U.S. Senate Select Committee on Intelligence—known as “The Torture Report”—documents that Mohammed was subjected to numerous acts of torture, including sleep deprivation, "rectal rehydration," and being waterboarded 183 times in a single month. Knowing that it could not use statements obtained by the CIA during those interrogations, the government had what they termed a “clean team” of FBI interrogators—who did not know what the detainees had told their CIA counterparts—interrogate the detainees to obtain statements for use at trial. The defense lawyers argued they needed access to records and witnesses documenting the torture to be able to show that the FBI statements were a coerced by-product of the CIA interrogations. Although Guantánamo defense counsel have top-secret security clearance, the government provided the defense only with redacted records of the CIA detention and “clean team” summaries of what guards and doctors said had occurred during the CIA interrogations. Defense lawyers also were threatened with prosecution if they tried to locate and interview CIA agents and others who had information about the circumstances of their clients’ interrogations. Judge Pohl ruled that the government restrictions denied the defense the ability to properly “investigate, prepare and litigate motions to suppress the F.B.I. clean team statements” and “to develop the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in C.I.A. custody the defense alleges constituted coercion.” Prosecutors have until August 27 to decide whether to appeal the order to the U.S. Court of Military Commissions Review. An appeal would further delay the already decade-long pre-trial proceedings in the case.

Two Servicemen Suffering From Brain Trauma, PTSD Win Death-Penalty Relief

Two servicemen—one a former airman on the U.S. military death row, another a decorated Vietnam veteran sentenced to death in Pennsylvania—have won relief from their capital convictions or death sentences. On August 1, 2018, the La Crosse Tribune reported that an Air Force court martial jury had imposed a life sentence on senior airman Andrew Witt (pictured, left) following a three-week capital resentencing trial. The verdict in Witt's case came two years after the U.S. Court of Appeals for the Armed Forces—the nation's highest military court—overturned his 2005 death sentence for murdering a fellow airman and his wife. On July 25, 2018, the U.S. District Court for the Eastern District of Pennsylvana granted death-row prisoner Robert Fisher (pictured, right) a new trial and sentencing hearing in the July 1980 murder of his girlfriend. If that case continues to a new capital trial, it will be Fisher's third trial and fourth capital sentencing hearing. Witt's conviction in 2005 marked the first time a U.S. airman had been sentenced to death since 1992. His death sentence was first overturned in August 2013, when the Air Force Court of Criminal Appeals—an intermediate appellate court—ruled that his lawyers had been ineffective in failing to present mitigating evidence that he had suffered a traumatic brain injury four months before the murders. The military appealed that decision, and Witt's death sentence was reinstated by the Air Force Court of Appeals in July 2014. However, the Armed Forces appeals court agreed that Witt's penalty-phase lawyers had been ineffective and remanded the case for a new sentencing hearing. With Witt's resentencing, four prisoners remain on the U.S. military death row. Twelve other servicemen have had their military death sentences reduced to life in prison. In Fisher's case, the federal court granted a new trial after the trial judge misinstructed the jury on the meaning of "reasonable doubt." It reversed Fisher's death sentence because the prosecution had sought the death penalty based on an aggravating circumstance that did not exist at the time of his first trial and because his lawyer failed to investigate and present mitigating evidence related to Fisher's military service in Vietnam, where he received a Purple Heart from President Lyndon Johnson (also pictured). This was not the first time that one of Fisher’s trials was problematic. At his first trial, Fisher’s lawyer had him tell the jury about his military service and his Purple Heart medal but failed to investigate any problems related to Fisher’s military service. Additionally, no mental health expert testified at Fisher’s sentencing to explain his brain damage, the psychological after-effects of intense combat, or his other serious mental health impairments, drug usage, and adjustment difficulties after returning from Vietnam. His defense lawyer also failed to rebut the prosecution’s portrayal of Fisher as simply a bad soldier.

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.

Lack of Death-Penalty Counsel Brings Guantánamo War Crimes Trial to a Halt

A Guantánamo military commission judge has indefinitely suspended proceedings in the death-penalty trial of Abd al Rahim al Nashiri, accused of planning al-Qaida’s alleged 2000 bombing of the Navy warship USS Cole off the coast of Yemen. Expressing exasperation over his continuing inability to compel civilian death-penalty lawyers to return to the case, Air Force Colonel Vance Spath (pictured) halted the proceedings on February 16. “I am abating these proceedings indefinitely,” Spath said. “We’re done until a superior court tells me to keep going.” Nashiri’s entire civilian defense team resigned for undisclosed ethical reasons, amid allegations that military officials had violated attorney-client privilege by eavesdropping on legal meetings at the Guantánamo Bay detention facility at which Nashiri has been held for the majority of his 15 years in U.S. custody. The resignations of veteran death-penalty defender Rick Kammen and civilian attorneys Rosa Eliades and Mary Spears followed Spath's refusal to allow the defense lawyers to investigate something that Kammen had discovered in a site reserved for attorney-client meetings. Because the discovery involved classified information, the lawyers were prohibitted from discussing it with their client, placing them, they said in an impossible ethical bind. Citing this ethical problem, the lawyers sought and received permission from Marine Brig. Gen. John Baker, the chief defense counsel for the Military Commissions Defense Organization, to withdraw from the case, leaving Nashiri's defense solely in the hands of a single military lawyer, Navy Lt. Alaric Piette, who had never tried a murder case. Spath then ordered Baker to rescind the order, and when Baker refused, sentenced him to 21 days of confinement for contempt of court. Harvey Rishikof, the Convening Authority of the Guantánamo tribunals, released Baker from confinement pending appeal and Spath and Piette have repeatedly clashed over Piette's request to have an experienced death-penalty lawyer appointed as his co-counsel in the case. Spath’s abatement of the proceedings came on the last day of a weeklong hearing in which Eliades and Spears ignored prosecutorial subpoenas to appear in court by video feed. After assembling the defense and prosecution in the court, Spath delivered what media reports described as "a 30-minute monologue" expressing frustration over having his orders ignored, alleged inaction by Pentagon officials to help him return the counsel to the case, and uncertainty over his authority raised by Baker's actions. “We need somebody to tell us, ‘Is that really what that says despite every other court system in America thinking differently?’” Spath said. “We need action from somebody other than me. And we’re not getting it.” Spath, who said he was considering retiring from the Air Force, said he had debated “for hours” whether to dismiss the case, but chose not to, saying that would have “reward[ed] the defense for their clear misbehavior and misconduct.” Nashiri, who has been diagnosed with PTSD and depression, remains a law-of-war detainee at Guantánamo Bay’s secretive Camp 7, which houses both captives facing war crimes trials and uncharged war prisoners.

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