Defense attorneys for the accused mastermind of the USS Cole bombing asked a federal appeals court on Tuesday for a fresh start to his trial, alleging that a glaring instance of judicial misconduct tainted their client’s military tribunal.
Lawyers for Abd al-Rahim al-Nashiri asked the District of Columbia Court of Appeals to take the extraordinary step of vacating decisions made under Air Force Col. Vance Spath, the military judge who was in charge of Nashiri’s case between 2014 and Spath’s retirement from the military last year.
They argued that Spath presided over the case with an undisclosed conflict of interest, noting that for years, he was angling for an appointment with the Justice Department while advancing Nashiri’s case on terms favorable to the prosecution team.
In November, the Miami Herald revealed that Spath had applied for a job with the Justice Department in 2015 to work as an immigration judge. At the same time, he was presiding over Nashiri’s case, in which Justice Department lawyers were part of the prosecution team seeking the death penalty.
Former Attorney General Jeff Sessions has been an outspoken supporter of Guantánamo’s military commissions. In 2017, he called the prison “a very fine place” to put new terror suspects, and he reportedly intervened last year to scuttle a plea deal that would spare 9/11 defendants the death penalty.
According to defense filings, in the years after he applied for an appointment with the Justice Department, Spath touted his “aggressive trial schedule,” while accusing Nashiri’s defense lawyers of creating “constant roadblocks, recalcitrance, and disobeyance of orders.”
Michel Paradis, a Defense Department counsel representing Nashiri, told the three-judge panel that Spath had “angled for an appointment from the Attorney General at the same time the Attorney General and Department of Justice had substantial interest in [Nashiri’s] case,” and that “he traded on the fact that he was the judge in this capital case for his own personal gain.”
Paradis also said that Spath had used one of his rulings favorable to the Justice Department in Nashiri’s case as a writing sample for his application. Spath ultimately got the job and was sworn in as an immigration judge in September.
Military judges are appointed to oversee cases by the Defense Department, and do not have the same lifetime tenure that federal judges enjoy.
Joseph F. Palmer, an attorney for the Justice Department, told the three-judge panel on Tuesday that it was normal for military judges to seek employment while trying a case. He also raised a procedural objection, saying that Nashiri’s attorneys should have allowed the military commission to rule on Spath’s recusal before bringing the case to federal court.
“Judges rule on decisions regarding their own recusal all the time,” Palmer said, “and it’s within the discretion of an appellate court to decide, ‘Let’s hear from the judge himself. Let’s have him explain why he did what he did.’”
Alka Pradhan, a human rights lawyer who represents a different Guantánamo detainee, told The Intercept that it wasn’t unusual for a military judge to seek employment elsewhere, but that didn’t excuse the conflict of interest.
“In this particular situation, where [the judge is] in a military commission presiding over a prosecution that is run entirely by the Department of Justice and has to pronounce on motions being brought by Department of Justice attorneys, that is a situation where it’s inappropriate for a military judge to be looking for employment with the Department of Justice,” Pradhan said.
Tuesday’s argument ruling is not the first time Spath has been in the national spotlight. In August 2017, Nashiri’s defense team found a surveillance microphone in the room they used to meet with Nashiri. In response, the lawyers sought to find out whether their privileged communications had been spied on. Spath denied the request, dismissing the claims as “fake news.”
“That in and of itself caused a legal conflict,” said Pradhan. “The client has no reason to trust them if the client can’t trust that their communications are privileged. The second level of conflict is that they were not allowed to tell Nashiri about the eavesdropping.”
Three of Nashiri’s lawyers resigned after consulting a legal ethics expert and getting permission from Guantánamo’s chief defense counsel, Brig. Gen. John Baker. In response, Spath held Baker in contempt of court and sentenced him to be confined to quarters for three weeks, a ruling later overturned by a federal court. Spath also told prosecutors to draft warrants for U.S. marshals to seize two of Nashiri’s lawyers and force them to appear before him, but instead shut down the trial, pending review by a higher court.
Nashiri is accused of planning the USS Cole bombing in 2000, when Al Qaeda operatives sailed a boat carrying explosives up to the U.S. Navy destroyer, which was refueling in the port of Aden, Yemen, and detonated the bombs, killing 17 U.S. sailors and injuring 39 more. But in the more than 16 years since, Nashiri’s case has repeatedly stopped and started, hamstrung by constant procedural hurdles. It has become a symbol of the inability of Guantánamo military commissions to prosecute alleged terrorists.
Nashiri was captured in the United Arab Emirates in 2002 and rendered to a secret CIA prison in Thailand. According to a report by the Senate Intelligence Committee, CIA interrogators tortured Nashiri even after they deemed him “cooperative and truthful,” shackling him in stress positions, waterboarding him, and on at least one occasion, force-feeding him rectally. Part of his interrogation was overseen by now-CIA Director Gina Haspel.
Legal commentators have held up Nashiri’s case as an example of how the military commissions system creates a web of procedural problems. Steve Vladeck, a professor of law at the University of Texas law school, wrote last year that Nashiri’s case was a “ten-layer dip” of procedural hurdles — from basic jurisdictional problems, to the fact that much of the evidence against him was obtained under torture, to ethics complaints against the presiding judge and requirements for qualified defense counsel in capital cases.
If the court grants Tuesday’s request, it could have ramifications beyond Nashiri’s trial.
Pradhan told The Intercept that a ruling in favor of Nashiri would give defense attorneys more power to challenge violations of attorney-client privilege, which have occurred in other cases before the military commissions.
“For the people who work on these cases, it would mean that we have more freedom to act in accordance with basic legal ethics than we thought we had,” said Pradhan, who represents 9/11 defendant Ammar al-Baluchi. “We’ve been operating under conflicts or potential conflicts for a very long time.”
The Miami Herald reported earlier this month that Spath’s successor overseeing Nashiri’s case, Air Force Col. Shelley Schools, recently accepted a new job as an immigration judge, a Justice Department position. Schools has not yet heard arguments in the Nashiri case, but her new position does not begin until summer, meaning that she could potentially preside over motions until then.
Paradis argued Tuesday that Schools’s upcoming retirement further underscores the need for a federal court to intervene.
“We’re going back before a judge that, at a minimum, will have a jaundiced view of our arguments here,” he said.
Prosecutors have said they would not oppose a defense request to reassign the case to a new judge. If that happens, whoever is chosen would be the fourth judge to oversee Nashiri’s case.