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, Spath 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.”