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.”

(Carol Rosenberg, Court Rejects 2 Years of Judge’s Decisions in Cole Tribunal, New York Times, April 16, 2019; Mark Sherman, Court Ruling Adds to Delay in Alleged USS Cole Bomber Case, Associated Press, April 16, 2019; Sarah Grant, Summary: D.C. Circuit Vacates Military Judge’s Rulings in Al-Nashiri, Lawfare, April 16, 2019.) Read the decision of the U.S. Court of Appeals for the District of Columbia Circuit in In re: Al-Nashiri. See U.S. Military.