The military judge presiding at the USS Cole death-penalty trial ordered the Pentagon to replace the senior official and his staff overseeing the war court process, ruling that a since-revoked requirement for judges to live at Guantanamo until a trial is over appeared to be unlawful influence.
Air Force Col. Vance Spath, the judge, issued the ruling in court Monday following a week of hearings that showed behind-the-scenes planning at the Pentagon on how to perhaps replace military judges and speed along the pretrial process.
Prosecutors defended the planning by the legal staff of the so-called convening authority for military commissions, retired Marine Maj. Gen Vaughn Ary, as routine brainstorming on resourcing of the war court.
Defense lawyers called the move-in order illegal meddling, a crime in military justice called “unlawful command influence,” that was designed to unfairly rush the death-penalty trial of Saudi captive Abd al Rahim al Nashiri, 50, as the alleged mastermind of the USS Cole bombing.
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They wanted the judge to dismiss the case. But Friday, while Spath was still hearing evidence, Deputy Secretary of Defense Robert O. Work quickly revoked the controversial order – meaning judges hearing war crimes cases now may keep their prestigious regular jobs and simultaneously preside at Guantanamo military commissions cases.
Spath, in court Monday, called dismissal “not appropriate” in this instance. Instead, he disqualified Ary and four lawyers who worked on the move-in requirement: retired Army Col. Mark Toole, Army Reserves Lt. Col. Alyssa Adams, Navy Reserve Cmdr. Raghav Kotval and Army Lt. Matthew Rich.
He ordered the Pentagon to replace them with new staff for the purposes of the USS Cole case – meaning a new convening authority would fund and assign Nashiri’s legal team resources and pick the pool of military officers for his eventual jury.
Spath also cut an upcoming two-week pretrial hearing at Guantanamo back to just one week, he said, to demonstrate “this detailed trial judge feels no pressure to accelerate the pace of this litigation.”
Seventeen sailors died in al-Qaida’s Oct. 12, 2000, suicide attack, and prosecutors want Nashiri executed if he’s convicted. The case has gone on for years, in part because the CIA spirited Nashiri off to four years of secret detention – where he was waterboarded and subjected to rectal rehydration and a mock execution.
Monday, Spath bristled at the notion that pretrial hearings could be accelerated.
“This is a complicated international terrorism case under a relatively new statutory scheme,” he said, “with unprecedented amounts of classified evidence.”
In last week’s hearings, Nashiri’s attorneys uncovered a plan to relieve Spath of his Guantanamo cases and leave him in his full-time duties as chief of the Air Force Judiciary – a behind-the-scenes development that Spath said was particularly troubling.
Ary had staff crunch costs of conducting commuter hearings here at remote Camp Justice – flights, translators, etc. – and figured that 34 days of hearings in 2014 cost $2,294,117 million for each day the court was open. That works out to $458,823 an hour on mostly tangential pretrial issues – or $7,647 a minute.
Staff also tallied how many hours each judge spent on the bench at Guantanamo.
Three judges are hearing three terror cases: the Sept. 11 capital murder conspiracy trial of Khalid Sheik Mohammed and four alleged accomplices; the USS Cole case; and the non-capital prosecution of Abd al Hadi al Iraqi, who is accused of commanding al-Qaida forces in Afghanistan that committed war crimes resisting the 2001 U.S. invasion.
The Sept. 11 trial judge ruled last week that, with the move-in order rescinded, that case could go forward.
The Hadi case judge has yet to rule on the unlawful influence question in his case. The next hearing is March 23.
Hadi’s lawyers were watching Spath’s decision to see what, if any, remedy they would seek from their Navy judge who is based in Naples, Italy, and commutes to Cuba to preside in the case.
It was disclosed over the weekend that the judge, Navy Capt. J.K. Waits, has lifted an order on the prison forbidding female troops from touching Hadi, a development that, like the move-in order, had stirred controversy.
Spath’s move rejecting a “convening authority” has precedent in the war court that President George W. Bush built and President Barack Obama reformed.
In 2008, before the reforms, a Navy judge in the case of Osama bin Laden’s driver disqualified the then-military commissions legal adviser, Air Force Brig. Gen. Thomas W. Hartmann, as not being fair and balanced. The legal adviser in that version of the war court had some of the duties of the current convening authority.