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.

(Carol Rosenberg, Frustrated USS Cole case judge retiring from military service, Miami Herald, July 5, 2018; USS Cole bombing trial guide, Miami Herald, May 23, 2018.) See Military Death Penalty.