Carol Rosenberg of the Miami Herald provides this update from the al Nashiri proceedings at the Guantanamo commissions:

A war court judge, reversing himself from remarks a day earlier, said Wednesday that he was still deciding whether to send U.S. Marshals to pick up two civilian defense lawyers who quit the USS Cole case and then ignored a subpoena to appear at the war court.

“I said very clearly yesterday that I want draft options … I haven’t decided yet to issue any writs,” Air Force Col. Vance Spath said at the opening of a third day of a weeklong hearing that has mostly focused on the presentation of evidence to the judge before a jury is seated and the trial begins.

Carol also reports:

On Wednesday morning, the judge said the night before he was reading an online military justice blog, CAAFlog, as part of his professional responsibilities and saw a reference to a Miami Herald article about his order to the prosecution to prepare arrest warrants for Eliades and Spears. They had ignored a subpoena to appear before the court by video feed on Tuesday.

Spath said the article misrepresented his request for the writs and left the impression that he was ordering the lawyers forcibly brought to Guantánamo. If he has them seized, he said, they will be brought to war court headquarters in Washington, where the court has a secure video link to the maximum-security court.

The post is available here, and did indeed imply that the warrant would be to bring the attorneys to Guantanamo because that’s what I though Colonel Spath was suggesting based on my knowledge of the case and the orders Colonel Spath previously issued to the civilian defense counsel to appear and represent al Nashiri (outlined in a comment here). But I updated my post on Wednesday after I reviewed the transcript of Tuesday’s proceedings (available here), to reflect that a warrant would be to appear in Virginia.

That transcript from Tuesday, by the way, quotes Colonel Spath as saying:

So what I would like is some homework overnight. Would you at least craft the two writs. Because I’m going to issue warrants of attachment — I plan to do it tomorrow — to have them brought sometime on Thursday or Friday.

Transcript at 11910 (emphasis added). The certainly looks like a decision to issue the warrant.

I will update this post when the transcript of today’s proceedings is available.

Update (Feb 15, 2018 @ ~2pm eastern): The transcript of the proceedings is available here, and includes the following statement by Colonel Spath:

And yes, I use CAAFlog. I don’t read the comments and I tend not to read the analysis; I don’t need their help, because some people suggest it has a bias. But what I appreciate about them is they tell me what cases have been decided, what cases are of interest. And then I can click on those links and go right to the case and I can read the case law, right, from CAAF or from AFCCA, or from the Supreme Court, and I can keep track of even cases that are affecting us. Seems like a reasonable one-stop shopping mechanism.

So I was a little surprised last night when I opened it to find this case making their — the top of the banner, and noticed very quickly that it said that I had ordered, or was going to order today, writs be issued against civilians to be dragged to GTMO. Imagine my surprise. Fortunately, there was a link to figure out where in the wide, wide world of sports is that coming from.

And it’s coming from a reporter who we brought down here and we bring down here willingly, and you know, put up, who got it wrong. I said very clearly yesterday I want draft writs so I have options as I figure out what to do, and I hadn’t made a decision yet. I don’t know if I could have been more clear. So I’ll say it again, I said yesterday I haven’t decided yet to issue any writs. If they’re issued, they’re not being brought to GTMO. Anybody paying attention to this process knows that, right?

Transcript at 11924-11925.

31 Responses to “Colonel Spath not pleased with CAAFlog, reconsiders issuing a warrant (updated)”

  1. Defense Wizard says:

    This is surreal.

  2. Charlie Gittins says:

    Kamman mostly has it right, but calling this a Kangaroo Court insults all of the kangaroos in Australia.

  3. Michael Schwartz says:

    Nothing wrong with reversing course. But the transcript doesn’t lie. Slow-motion train wreck.

  4. Kettle Black says:

    Zach,
    That title is poor.  Non sequitur headlines are expected from Fox News, not CAAFlog.  If you intend to get into a pissing match with Col Spath, at least try not to look trashy doing it. 

  5. Zachary D Spilman says:

    Help me out with that, Kettle Black.

    Carol Rosenberg reports that Colonel Spath “said the article misrepresented his request for the writs and left the impression that he was ordering the lawyers forcibly brought to Guantánamo.” Assuming that’s a reference to my post and not her article (and I think it is), is that not clearly displeasure?

    Furthermore, since the transcript from yesterday shows that Colonel Spath then said “I’m going to issue warrants of attachment,” and Carol’s reporting today quotes him as now saying “I haven’t decided yet to issue any writs,” is that not clearly a reconsideration?

  6. slyjackalope says:

    Glad he’s reading CAAFlog.  It would be nice if he would follow our advice and stop this before it makes military justice look any worse.  Locking up a one star for doing his job was bad enough.  Locking up two civilian defense counsel because the Government wouldn’t let them do their jobs would be ridiculous.  Abate the proceedings until DoD can get some judge advocates properly trained and do this the right way.  The current way this is being handled isn’t going to get this case done any quicker.

  7. Kettle Black says:

    Zach,
     
    Well, first, I disagree that “article” is a reference to your post and not to the Miami Herald article.  From the Herald column you cited above, it appears to me that he saw CAAFlog’s earlier post, noted it was based on a Herald article, and determined the Herald article was erroneous.  Thus, his “displeasure,” if that is what we are calling it, is directed at the reporter who supposedly misconstrued his comments.  Not CAAFlog.
     
    Second, and perhaps this is me getting my days mixed up, but it does not appear as though Col Spath is actually “reconsider[ing]” a firm decision. The same article above quotes Col Spath saying on Tuesday:
    “Also — again, I don’t know yet. I really do mean I’m going to pause overnight to take some time to work through the different options and to make sure that I am proceeding in a manner that is judicious and fair, and not based on any frustration, because sometimes it is easy to feel some frustration, and I find it’s best to take a pause.” 
    That quote is apparently in reference to whether to issue the warrants.  Thus, it seems he had not actually decided the matter and was only voicing it is a potential option.  He was weighing a decision.
     
    My problem with your title is it is disingenuous.  It presumes that Col Spath made a decision, which, according to the full quote (which you did not include), he in fact had not.  It further suggests that Col Spath reconsidered that decision, yet the quote above indicates he was already undecided.  Finally, the title infers that the reason Col Spath reconsidered the issue was specifically because he was displeased with CAAFlog, which is an illogical argument.  It’s a non sequitur.  Hence, the title appeared to me to be similar to the typical scandalous headlines one would find from Fox or MSNBC – “Shaun White drops flag in snow; hates America”
    Read more here: http://www.miamiherald.com/news/nation-world/world/americas/guantanamo/article200059939.html#storylink=cpy
     

  8. Javert says:

    i wonder what his screen name is

  9. DCGoneGalt says:

    I was busy all day, glad I didn’t miss anything interesting.  

  10. Zachary D Spilman says:

    I think your position is a stretch, Kettle Black, but not unfair. I’ll admit that I tried to get the title of this post onto one line and that I’ve been very busy with other things today, so I didn’t really worry about phrasing. 

    As for Colonel Spath’s full comment (yesterday), here it is:

    So what I would like is some homework overnight. Would you at least craft the two writs. Because I’m going to issue warrants of attachment — I plan to do it tomorrow — to have them brought sometime on Thursday or Friday.

    Also — again, I don’t know yet. I really do mean I’m going to pause overnight to take some time to work through the different options and to make sure that I am proceeding in a manner that is judicious and fair, and not based on any frustration, because sometimes it is easy to feel some frustration, and I find it’s best to take a pause.

    Transcript at 11910 (paragraphing in original).

  11. Here's an idea says:

    So who knew – If General Baker wanted an opportunity to be heard by Judge Spath prior to being found in contempt, then all he had to do was post on the CAAFLog comment section.

  12. Tami a/k/a Princess Leia says:

    What I think is most interesting is Col. Spath reading CAAFlog as part of his professional responsibilities.  Glad to hear we contribute to an ethical environment!

  13. Michael Schwartz says:

    Wouldn’t it also be interesting if either of the parties sought CAAFlog’s history of IP addresses accessing Nashiri-related material? And more interesting still would be Col Spath’s response to a motion for a subpoena of that information?
     

  14. Zachary D Spilman says:

    Virtually all DoD web traffic goes through proxy servers, effectively hiding the IP of the user. 

    We haven’t seen web traffic from Guantanamo since 2011. We did, however, get 5 visitors from Havana in 2012. 

  15. Michael Schwartz says:

    It would show up as from the Ft Meade area.

  16. Shawn says:

    About the headline:  Judge Spath surely believes CAAFlog to be seen by far more military attorneys than read the Miami Herald and probably does not much care how laymen, like me, feel about the matter.  But, then, too, being self-referential often leads to a paradox.

     

  17. DCGoneGalt says:

    CAAFlog should be seen my more military attorneys than the Miami Herald.  Or this isn’t a world I want to live in.

  18. Dew_Process says:

    Meanwhile, Judge Spath is back in the news HERE.
     
    Frankly, I’m surprised that the government hasn’t sought a writ on the legality of Judge Spath’s ruling that only he can release defense counsel [even though the language suggests otherwise], under the anticipatory jurisdiction of the All Writs Act.

  19. Stephen Wilson says:

    From Carol Rosenberg:
     
    BREAKING: After a long monologue of his frustrations and uncertainty over the defense resignation,s USS Cole Judge Vance Spath just announced: “I am abating these proceedings indefinitely… We’re done until a superior court tells me to keep going.”

  20. Random JA says:

    I have mixed feelings about this because 1) Col Spath ruled there was no ethical conflict based on the factual predicate, and 2) I agree that the defense resignations/undetailing was a defense tactical gambit. Still, it seems like the issue isn’t so much with higher courts but rather with Congress itself. Although a case could be made that SECDEF can amend the rules to cover issues like this (although one also could argue that the defense are just ignoring the actual rules anyway), the defense are basically exploiting gaping holes in the MCA 2009 itself to achieve these results. If the commissions survive this latest setback, Congress may need to close some of these holes by affording trial judges some real, statutory teeth in controlling their courtrooms. 

  21. Hacksaw Jim Duggan says:

    Col. Spath is simply the best!!! 

  22. Dew_Pr0cess says:

    Here’s a LINK to Rosenberg’s article.  Guess he’s still reading CAAFlog!

  23. Dew_Process says:

    Transcript of abatement proceeding is HERE. 

  24. J.M. says:

    As a layman, I’m just boggled by this whole thing. If we wanted a kangaroo court conviction, why not just simply charge Nashiri with a 120 offense? 
    Personally, I wouldn’t have minded a bit if Nashiri had gone on a Pinochet helo ride. But when you start a trial, you better bend over backwards to not only make it fair but ensure the world sees that it’s fair. 

  25. Charlie Gittins says:

    “[Spath] said he debated ‘for hours’ whether to dismiss the case, then chose not to do it because it would be ‘rewarding the defense for their clear misbehavior and misconduct.'”   Really?  “Clear misbehavior and misconduct?” 
    CDCC granted the defense counsel’s request to be relieved.  The Rules promulgated by the President authorize it, even if the bench book created by the commission judiciary (a lesser source in the hierarchy of laws) does not.  Plus a well-regarded Ethics expert opined that counsel could not continue due to questions about the confidentiality of attorney-client communications, an issue that evidence has shown so far is non-frivolous but this judge would not allow Mr. Kamman to litigate it. 
    Clear misbehavior and misconduct?  Sounds to me like this AF Colonel needs to take his own advice and retire because of the strain.  His judicial temperament apparently has been exhausted and he probably needs a rest.  If I were defense counsel, I’d be making a bar complaint to his state bar, never mind the useless service Rules Counsel. Based upon his statements about defense counsel, this judge could never sit as an impartial fact-finder or judge even if the counsel returned because he has already concluded they have committed “misbehavior and misconduct” in his courtroom.  What a shit-show.  BRAVO! 

  26. AFDCAO says:

    I don’t know enough about the commissions law to intelligently comment but this whole thing disappoints me.  I’m disappointed that a process designed to bring justice seems to have completely failed after many wasted years and dollars.  While there seems to be a lot of finger pointing to Col Spath and the DC, it seems that the real party at fault is Congress and senior leadership who designed this mess of a system.  As military members, we can’t publicly say that (which probably feeds into Col Spath’s frustration) so the parties keep pointing at each other.  I’m disappointed that the name of a good officer is being drug through the mud by a number of people who probably don’t understand the process any better than I do.  I’ve appeared in front of Col Spath many times and, in my experience, he has always been temperate, courteous and intelligent.  He’s ruled against me numerous times but I never felt that it was personal and I always felt that his rulings stemmed directly from his understanding of the applicable law.  I wasn’t at GITMO so I can’t say what happened in these hearings but the caricature being drawn by Charlie Gittins and others is totally out of character with the Judge I have observed since my earliest days in the Air Force.  The AF trial judiciary is in a much better place today than it was when he took over and much of that is due to his influence.

  27. Tami a/k/a Princess Leia says:

    I would be pointing my finger at the government as the main culprit of this fiasco.  Objecting to the declassification of information so an adequate defense can be mounted.  Recording privileged conversations, forcing the defense to have to quit.  This is a joke of a system.
     
    AFDCAO, I felt the same way about COL Gross, of Hasan infamy.  I practiced in front him in Korea, and although he ruled against me on one occasion, he was the first judge I actually felt my client was getting a fair trial, and he did not hesitate to shut the trial counsel down when they crossed the line.  So I was surprised to see the result in Hasan, and could only conclude COL Gross’ frustration with the delay influenced his rulings.  I suspect the same is happening with Col. Spath.  But I also think it’s unfair for him to blame the defense for the fiasco that has unfolded.

  28. Tami a/k/a Princess Leia says:

    And it’s coming from a reporter…who got it wrong.
     

    What, you mean there was fake news?  Shocking (sarcasm).

  29. stewie says:

    So a reporter getting it wrong equals fake news??

  30. DCGoneGalt says:

    It was news.  And it was fake.  
     
     

  31. k fischer says:

    Stewie/DCGG,
     
    Please allow me to settle this.  DCGG, you are arguing what I commonly trap a CID agent with by asking whether something in his report was false.  Of course, the CID agent immediately takes offense because he thinks I’m calling him a liar.  And, perhaps, he says this on the stand, “Are you calling me a liar??”  The response is, “No.  I merely asked you if what you wrote in the report was false, or, in other words, not true.  I was going to use your answer to show that you are an incompetent buffoon, but since you brought up the “L” word, let me ask you, were you lying when you wrote that in your report?”
     
    That being said, the phrase “fake news” has a certain connotation that lends itself to an inference that the news was not only false, but it was intentional false.  A fake would be quite similar to a forgery, which is by no means, an unintentional mistake. 
     
     
    For example, let’s say a 7th grader gets his hands on a book of old baseball cards that were reprinted and had the words “Dover Reprint” on the back.  He sands off the perforated edges and the words “Dover Reprint” and soaks the card in a solution of white and cordovan shoe polish mixed with water to give it an aged look after they dry.  Then, he trades the cards to his classmates for modern era cards because he “doesn’t know who Christy Mathewson or Tris Speaker are.”  The cards are fabricated, or fakes, which he immediately trades back when the other kids find out after one of them attempts to sell one to a professional card dealer, so he doesn’t get a beat down.
     
    So, I must agree with the inference contained within Stewie’s rhetorical question.