Back in January the Court of Appeals for the District of Columbia Circuit heard oral argument on a petition for a writ of mandamus in the long-running military commission of al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole. We noted the hearing in this post, and linked to the audio in this post.

The basis for the petition was a challenge to former military commissions judge Colonel Spath (now retired) based on the fact that while serving as a commissions judge in the case prior to his retirement, Spath sought (and eventually obtained) employment as a federal immigration judge. During that time he also held the chief of the Military Commissions Defense Organization in contempt (a finding that was later reversed; the #8 Military Justice Story of 2018) and he abated the al Nashiri trial indefinitely.

Today – in an opinion available here – the DC Circuit granted al Nashiri the requested writ and vacated all orders issued by Spath on or after November 19, 2015 (the date he applied for the immigration judge position), and all decisions of the Court of Military Commissions Review (CMCR) reviewing such orders.The court reasoned:

In sum, the Attorney General was a participant in Al-Nashiri’s case from start to finish: he has consulted on commission trial procedures, he has loaned out one of his lawyers, and he will play a role in defending any conviction on appeal. The challenge Spath faced, then, was to treat the Justice Department with neutral disinterest in his courtroom while communicating significant personal interest in his job application. Any person, judge or not, could be forgiven for struggling to navigate such a sensitive situation. And that is precisely why judges are forbidden from even trying. See Scott v. United States, 559 A.2d 745, 750 (D.C. 1989) (explaining that a judge’s obligation to avoid seeking employment with a party appearing before him does not “change simply because the prospective employer is a component of the Department of Justice”).

The fact of Spath’s employment application alone would thus be enough to require his disqualification. But Spath did yet more to undermine his apparent neutrality.

First, in his job application, Spath chose to emphasize his role as the presiding judge over Al-Nashiri’s commission. He boasted that he had been “handpicked by the top lawyer of the Air Force to be the trial judge” on “the military commissions proceedings for the alleged ‘Cole bombing’ mastermind,” Reply Attachments B-2, and he even supplied an order from Al-Nashiri’s case as his writing sample, see id. at B-11. Spath thus affirmatively called the Justice Department’s attention to his handling of Al-Nashiri’s case, making his performance as presiding judge a key point in his argument for employment.

Second, while Spath made sure to tell the Justice Department about his assignment to Al-Nashiri’s commission, he was not so forthcoming with Al-Nashiri. At no point in the two-plus years after submitting his application did Spath disclose his efforts to secure employment with the Executive Office for Immigration Review. Indeed, perhaps most remarkably, less than twenty-four hours after receiving his July 2018 start date, Spath indefinitely abated commission proceedings, musing on the record that “over the next week or two” he would decide whether “it might be time . . . to retire.” Commission Tr. 12374 (Feb. 16, 2018); see also supra at 11–12. Given this lack of candor, a reasonable observer might wonder whether the judge had done something worth concealing. Cf. Rule for Military Commissions 902(e) (permitting, in some circumstances, “the parties to [a] proceeding” to waive judicial disqualification but only if the waiver “is preceded by a full disclosure on the record of the basis for disqualification”).

It is, of course, entirely possible that Spath’s orders were the product of his considered and unbiased judgment, unmotivated by any improper considerations. But that is beside the point: “[a]ppearance may be all there is, but that is enough.” Microsoft Corp., 253 F.3d at 115. As the Supreme Court has explained, “[t]he problem . . . is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges.” Liljeberg, 486 U.S. at 864–65. Spath’s job application, therefore, cast an intolerable cloud of partiality over his subsequent judicial conduct. Al-Nashiri thus has a clear and indisputable right to relief.

Slip op. at 22-24 (emphases added).

62 Responses to “DC Circuit vacates all orders issued by military commissions judge Colonel Spath due to a disqualifying appearance of partiality”

  1. Philip D. Cave says:

    Note also this little goody.

    At that time, all Al-Nashiri knew was that Spath planned to retire and that Schools had replaced him; Spath had given no indication that he had applied for and accepted a job in the Justice Department. But in summer 2018, Al-Nashiri’s defense team—which by this time had added Captain Brian Mizer, one of Al-Nashiri’s former lawyers who had been recalled to active duty—received “credible reports” that Spath had been pursuing employment as an immigration judge. Petition for a Writ of Mandamus and Prohibition (“Al-Nashiri Pet.”) 23, In re AlNashiri, No. 18-1279 (Oct. 4, 2018). Al-Nashiri’s lawyers submitted a request for discovery on the matter, but the government refused, calling the reports “unsubstantiated assertions” and arguing that the “[d]efense request offers no basis to believe that the former presiding military judge has applied for a position with the [Justice Department] or even contacted the [Justice Department] regarding employment.” Corrected Al-Nashiri Attachments, Attachment B, at 1. Less than a week later, however, an Associated Press photograph surfaced showing Spath standing next to Attorney General Sessions at a welcome ceremony for new immigration judges.

    So, what say you about the prosecutors?  They get the request and rather than inquire they object.  Apparently, they took no action themselves to confirm or deny what the defense was asking about–not untypical IMHO?  Should they have known about the judge’s status when they objected to the defense inquiry, or should they have taken reasonable steps to verify the information behind the request before putting the objection on the record only to be proven wrong a week later by finding that the information was likely available to them for a long time?

  2. Anon2 says:

    Your questions are unanswerable, Phil.
    Today’s opinion reaches beyond just post-retirement jobseeking. Every time a military judge submits for a promotion board or advanced schooling or reassignment it’s basically an “employment application.” The applicant judge will fare poorly if his or her rulings have angered the TJAG. 
    Recall that a recent Army TJAG picked judges because they were team players
    One hopes that CAAF will be as active as the D.C. Circuit in policing judicial conduct and ensuring judicial independence of military judges.

  3. David A. says:

    Ethics violation. Bar license in jeopardy.

  4. John Marshall says:

    I can’t imagine CAAF extending the rationale in this ruling to prevent military judges from seeking promotion, professional military education, or reassignment.  Such a holding would essentially mandate an entirely different system of military justice, which the Supreme Court recently endorsed for its “judicial character and constitutional pedigree” (Ortiz v. US). 

  5. GuelphD says:

    It appears that there is a basis for more than the appearance of impropriety on the part of Judge Spath.  I will pass on commenting on the prosecution’s answer in this bit. Since Spath was still on active duty when he failed to disclose his post-retirement judicial job (a job that was ensured to him by a reserve AFJAG colonel he rated), and since it seems likely that General Burne and the HQ staff knew of his post-JA pursuit since they supported him in it, shouldn’t there be a broader investigation into the judge, the former TJAG, and others on the HQ staff who knew of this.  And to the point of Spath, should there not be consideration of recalling him to active duty – much as has been debated on this page about the extension of military jurisdiction over retirees as articulated by retired DJAG, Charles Dunlap – for the purpose of investigation and/or discipline.  It seems as though there is a possible dereliction and ethics rules violation here from the military side.  Surely these rules of retiree recall do not exempt the favorites and higher ranks???

  6. Bill Cassara says:

    I anticipate this issue being raised on every appeal where Spath sat as judge.

  7. GuelphD says:

    Bill, you are probably right and it would be right for the counsel to do so.  I want to clarify what I earlier wrote and add a few items.  I am also going to caveat my comments with two points.  I have inside first-hand knowledge of what I write, but I am still subject to be an object of revenge by the current AFTJAG.  First, Chris Santoro, a retired reserve judge actively recruited Colonel Spath and others, but he favored Spath and Spath rated him.  Santoro is now the principal deputy immigration judge.  He knew about Spath’s silence and did nothing about it – other than to vouch for Spath getting the immigration judge position in a location favorable to Spath.  (Spath did not want to move and obtained one of the premier positions).  When Spath submitted his writing sample, he did so as though it were a ruling he wrote.  It was not.  A clerk wrote the judge’s rulings, and he did little to alter it.  After seeing the ruling after the FOIA, the defense did not ask or inquire about this, but essentially Spath likely committed plagiarism or made a false statement to the DoJ (at least by implication).  Santoro would have also likely known about this omission on Spath’s part.
    Dirty enough yet???  Not quite.  There is an AFJAG cabal in the immigration judge hierarchy.  You only need to look at the office of the chief judge web-page.  The old boys (or girls) system at play here is troublesome.  It is the same blindness that enabled Fiscus to rise to TJAG and no one else in his inner circle was held accountable.  It promises the same protective mentality that enabled Harding to get away with giving error filled advice to the acting SECAF in transferring an innocent Brandon Wright back to DC for a trial, simply to weaken Sen Gillibrand’s military justice reform (or alteration) efforts.
    I am not a bleeding heart liberal, and I want immigration judges to do their job.  I’d like an independent military judiciary to do its job as well.  Spath’s presence in either, as well as his enablers, including the insurance-proofed leaders of this system create a cancer making it impossible.  The problem is not just Spath.  It’s the entire group of self-serving leaders from his era as chief trial judge who protected each other and him, while stomping on judges who ruled against the leadership, and airmen brought to trial under unfair circumstances.

  8. Curtis says:

    AFTER Spath held the Defense in contempt in the case cited above I looked a little deeper into the man and decided he was the wrong man for the job he held by whim of the military. He was totally out of control demanding that lawyers no longer representing muslims in Gitmo be returned to Gitmo to carry on wtih the job.
    I don’t know what it is with the current legal profession of judges but it really doesn’t work that way despite their predecessors rulings and beliefs. Gen X and the rest will tell them to sod off swampy and mean it. 

  9. GuelphD says:

    Curtis – you should reach out to his former two lieutenant colonels who saw their careers end because they made the right rulings against the whims and will of the TJAG, or to the former administration chief Don Plude for SA.  This is bad… very bad

  10. Anon2 says:

    John Marshall, you are probably correct that CAAF will not do anything about this. But can you think of any judge who is more conflicted than a military judge who decides cases while simultaneously seeking promotion? If such a conflict is unacceptable for Nashiri then why do you believe it is acceptable in trials of servicemembers? 
    GuelphD raises some disturbing issues. Judge Spath’s unfortunate failures to disclose are not unique to him, though. I have never heard of a military judge disclosing to an accused that he or she is in the process of seeking promotion / assignment / schooling from the TJAG while simultaneously deciding the accused’s case. Judge Spath simply carried on the custom of nearly all military judges in failing to disclose potential conflicts of interest. 

  11. GuelphD says:

    Anon 2.  I suppose that military judges (I was never one – I was a prosecutor, defense counsel, and worked on appeals) are assumed to be vying for promotion.  It might seem like there is little reason to have to disclose this.  The exceptions might be the passed over lieutenant colonel and the “long in the tooth” colonel, who already know their careers are at a terminal end.  What seems to have occurred here, is that Spath knew there was a direct and cognizable question about his impartiality in that he had applied to be an immigration judge, and he stood by at let the prosecution label the question as fanciful and without basis.  Frankly, there is enough here to investigate what may very well be a failure in ethics and the SECAF should take over the investigation and recall Spath.  Moreover, the AG should suspend him from his current judicial post until this is resolved.

  12. Anon31 says:

    GuelphD.  You seem to have an impressive inside account or an impressive imagination.  Or a hatchet to bury.  Did Spath rule against you?

  13. Reader says:

    GuelphD, you have offered some dramatic claims and called for serious actions to be taken.  The reason we readers are forced to accept this on your unsigned word is because you are “still subject to be an object of revenge by the current AFTJAG.”  I cannot imagine any adverse action taken now, in response to the public service you are providing here, could survive even limited scrutiny.  Please corroborate these indictments when you have a minute so as to speed along the processes (administrative and criminal included) you believe to be appropriate.  Thank you.

  14. Kafka, Esq. says:

    A couple of points:
    First, I want to be Brian Mizer when I grow up.  
    Second, this isn’t a one-off for Spath and his crew — for more evidence of the shenanigans going on during Spath’s tenure as chief, just see the AFCCA opinion in US v. Vargas.  As a refresher, Judge Eller was found to have been, uh, less than forthcoming (putting it mildly) about his knowledge of how his boss (Spath) was re-assigning a certain “defense-friendly” judge from Article 120 cases.  I know this comes as a complete shock, but Eller also is now an immigration judge.  At what point does the Air Force conduct an investigation?  Or better yet, when does Congress ask TJAG what the hell is going on?

  15. Pontius says:

    I’ve practiced before Spath several times and have found him to be above reproach.  All the opinion says is that there was an “appearance.”  He probably didn’t want to tell the parties because they would impute bias when there was none- like is already happening.  Let us not forget that Nishiri is a terrorist who is not entitled to the Due Process rights U.S. citizens are afforded. This is why he was sent to Gitmo in the first place. Col Spath must have been frustrated overseeing a criminal case that was not moving anywhere, preventing justice for all of Nishiri’s victims.

  16. Ed says:

    And the United States District Courts are very effective at dealing with terrorists. Congress should consider this. This case would have been over a long time ago.

  17. Anonymous says:

    Spath, the same judge who was the DuBay hearing officer that ruled Crawford committed unlawful influence in the US v. Barry case, thus effectively ending his career as the Navy TJAG. Spath and Eller coming from the AFJAG Corps, both with big no no’s at the end of their careers. Something tells me bar complaints for ethics violations since the USAF won’t do anything, even though retirees can be recalled and subject to the UCMJ.

  18. Sea says:

    I think one of the most recent articles over on Lawfare hit the nail on the head, the Military Commissions have failed.  This is just another in a long line of black eyes the process has recieved over the years, without tangible results and the likelihood that any results will be overruled.  Spath was wrong here, are the numerous actors that have acted in bad faith over the last ten years when it comes to these cases.  The fact that this was a three judge ruling with even the more conservative Judge Griffith joining speaks volumes.  Quoting from the end of the opinion:
    “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.”
    The worst thing is that because of the governments hubris and the hubris of all those involved, over three years of this case has been wiped out.  We cannot provide a fair and impartial system of justice with people acting like this, and the real losers today are the families of the victims in these cases.  They may never get the closure they desire, whether due to the torture, alleged breach of attorney-client privilege, or because some don’t understand their ethical obligations.

  19. Dew_Process says:

    Let me add a few cents worth of commentary here. First, I have a transcript of an AF case where the MJ, Col Moore (ret.) did disclose that he had a post-retirement job application pending within the DoD. He did the right thing because I cannot imagine any (at least AF) 0-6 not knowing about the post-retirement provisions in the JER.

    JER, ¶ 2-204, sets the Standards for Accomplishing Disqualification, which fall into three broad categories:

    a. Disqualifying Financial Interests;
    b. Disqualification to Ensure Impartiality; and

                         c. Disqualification From Matters Effecting Prospective Employees.

    Even if the provisions of ¶ 2-204, somehow did not apply to Col Spath’s situation here, the DoD’s “catch-all” guidance at ¶ 9-500(c), states rather clearly:

    DoD employees shall:

                                               * * * * *

    c. Avoid any activity that would affect the public’s confidence in the integrity of the Federal Government, even if it is not an actual violation of the law.

    Now take a look at Title 18, U.S. Code, § 208(a), which prohibits in relevant part:

    [A]n officer or employee of the executive branch of the United States Government . . . through decision . . .in a judicial proceeding . . . in which, to his knowledge, he . . . is serving . . . or any person or organization with whom he is negotiating or has any arrangement concerning prospective employment, has a financial interest–

    Shall be subject to the penalties set forth in section 216 of this title [Title 18].

    Rule for Courts-Martial (RCM) 902 lays out two standards for the disqualification of a military judge. The first, like the federal rules, disqualifies any judge from “any proceeding in which that military judge’s impartiality might reasonably be questioned.” RCM 902(a). And specific to the particular issue here, the RCM states that disqualification is required where a military judge has “an interest, financial or otherwise, that could be substantially affected by the outcome of the proceeding[.]” RCM 902(b)(5)(B). In the post-judicial employment context, such interests can arise either because of how the timetables governing a military judge’s existing judicial duties might impair the availability of other employment opportunities or because of how the perception of a military judge’s performance in a particular proceeding might appeal to or discourage a prospective employer.
    I too have some “inside” information. First, I’ve known Spath since he was a Circuit Trial Counsel as a Major. ‘Nuff said. Second, let’s not forget that he was the Chief AF Trial Judge. Third, Al-Nashiri’s “Learned Counsel,” Rick Kammen and I have been friends for many, many years. When he first was designated as Learned Counsel, I helped him get up to speed on military law in general, and advised him on a couple of specific issues going on with the case. Fourth, I have a Record of Trial in my office from a GCM of an officer that took place just 4 weeks before Spath abated the Al-Nashiri proceedings. This was in January 2018, long after he’d been selected for the Immigration Judge slot. Another thing that the DC Circuit’s decision does not disclose is that Spath was from mid-2017, engaged in significant salary negotiations with the DoJ – he objected to the “normal” DoJ starting salary schedule which was roughly the same as his 0-6 pay. The end result was a “rules interpretation” that gave him a hefty pay raise as a starting IJ. [I’ve got documentation for all of this BTW].
    There is another thing not discussed in the DC Circuit’s opinion. It talks of his “boasting” about his credentials — he also boasted in his job application [I’ve got a copy of that as well] about his considerable “experience” in both prosecuting and presiding over “sexual assault” trials. Now, what does that have to do with being an Immigration Judge? On its face, probably little to nothing. But, remember, he’s negotiating both for the position as IJ as well as his starting salary with the powers-that-be in the DoJ. So what’s the link here?  DoJ supervises and monitors all federal SORNA issues which includes military cases, and the DoJ prosecutes those who fail to register or fail to re-register if there’s an interstate move in SORNA cases. Prosecuting “sex offenders” was one of former AG Sessions’ priorities, so in two different places on his job application, he blows smoke about that. That of course ties in with the reference above to the U.S. v. Vargas “issue.”
    Finally, let’s not forget the proverbial “pink elephant” in the courtroom. Spath was responsible for most of the problems he complained about, e.g., defense delays. Yet he denied countless defense discovery requests because he rubber-stamped the government’s mantra “It’s classified, Your Honor.” So what? There was nothing properly classified about monitoring attorney-client conversations, nothing classified about hidden microphones in the interview rooms at GTMO where the defense met with their clients, and then ruling and Ordering the Defense that they could not tell their own client what the problem was.  All 3 civilian defense counsel had ethics opinions (from 3 different sources) saying that was the last straw, that they could not continue to represent Al-Nashiri, something that General Baker agreed with and respected, and courageously “took the bullet” of contempt initially for it. Let’s not forget that the decision also vindicates General Baker.
    Oh, and Col Spath (ret.) has admitted to reading CAAFlog . . . .
    Stay tuned, there’s more to come.

  20. EthicsAttorney says:

    Vice Bill (who’s smarter than me) and Guelph (who I don’t know), the assertion that Col Spath’s play for an IJ position will cause headaches for the government on appeals to CAAF are missing the ethics violation.  The problem is that Col Spath was pursuing a position with a party before him (DOJ).  This created a conflict of interest, and therefore the vacation of orders.  With respect to the military, however, there is no evidence Col Spath was seeking a civilian position with the Air Force (or a civilian defense office).  Accordingly, there is no conflict violation.
    To the broader point of military judge’s having assignments doled out by TJAGs that are also parties before them, well, that’s a problem with the MJ system as a whole.  Perhaps some enterprising attorney with the right facts can make that case to CAAF, but if it’s not been an impediment to practice for almost 70 years…

  21. AFGUY1JA says:

    Pointius – I recognize the reticence to not smear a person, and in particular, a career officer who really did dedicate a substantial portion of his life to our defense and does deserve that recognition.   But…. your characterization of what the court stated is wrong.  On several occasions, the court of appeals noted (and this is a matter of law) that Judge Spath lacked candor.  The following statement is illustrative: 
    “Given this lack of candor, a reasonable observer might wonder whether the judge had done something worth concealing.”  I won’t pretend to be an expert on judicial ethics or be able to pick apart the PepsiCo v. McMillen decision.  In DeNike v. Cupo, 196 N.J. 502 (NJ 2008), the New Jersey Supreme Court determined that any sort of employment negotiations, including tentative discussions, require recusal.  New jersey is not alone in this.  In In re Continental Airlines (you remember, the airline that seemed to take all of us stationed on Guam on and off that island), the Court of Appeals for the Fifth Circuit likewise issued a prohibition on judges seeking post-judicial employment and serving on a cause of action tangentially related to the employment (in this case, the firm representing the airline received an award of attorneys’ fees while the judge and firm were in employment discussions even though the judge was not going to work on airline matters).  Indeed in that decision the court of appeal noted that the judge had a personal duty to vacate all of his previous rulings on the case.  In our case, neither Judge Spath nor Judge Schools did so.
    In 2005, the Court of Appeals in Bankruptcy Services v. E&Y (In re CBI Holding Co), one of the appellate judges noted in his recusal that five years earlier, he had entered into a negotiation with a law firm that represented one of the parties as a possibility for post-retirement work (the judge opted to take senior status so the discussions went nowhere).  Nonetheless, the fact that there had been a discussion mandated recusal.
    Again, the decision we are dealing with here makes clear that there was no negligence that can be dismissed in this case.  Rather, there was a judge who clearly broke a rule of judicial ethics and this breach was severe enough to cause a total restart on the trial of a person accused with one of the more heinous crimes of our time.  Whatever one might think of Judge Spath as an officer, lawyer, or person, the fact is that three independent judges who are part of an independent branch of government, determined he purposefully acted to conceal an important aspect of his judicial service and that this act/omission occurred in a less than ethical manner.

  22. Anonymous says:

    The “Good Soldier Defense” no longer works in courts martial. Why would it work for Judge Spath? It doesn’t really matter what kind of officer, trial judge, or if he was “beyond reproach.” 

  23. Pontius says:

    Anonymous, I was simply making the point that it is a stretch to impute actual bias.  It’s my sense that many people are quick to assume the worst about Spath.  This is a man who has a history of exemplary service.  Despite being under tremendous scrutiny during the many years he was on the bench and an SJA there is little to nothing which suggests he is corrupt, as many are claiming.  I understand the appearance issue, but I’ve yet to see or hear of any rulings where Spath’s supposed bias caused him to make an improper ruling.
    I also find it ironic that many on this blog rage about Spath not being forthcoming enough, but sit mum as defense attorneys for terrorists like Nashiri abuse our system to drag their clients’ cases on indefinitely.  Last time I checked attorneys (including criminal defense attorneys) cannot delay for the sake of delay.  Nashiri’s victims deserve justice, not more delays.

  24. Sea says:

    Pontius, your last point is why this is a travesty, but for the government, not for the Defense.  The job of a Defense Attorney is to zealously fight for their client.  They have many tools at their disposal, and they have to fight in good faith for their client any way they can.  The Defendants at Guantanamo, who are charged with very serious crimes, already are not offered the same protections they would find in the states.  That’s why Congress has left Guantanamo to stand with its sordid history.  Everyone deserves their day in court under an impartial arbiter.  You may have good knowledge about Colonel Spath, and it is true that he has given many years of honorable service to the United States, but in this case, as is made painstakingly clear by the court, he was not as forthcoming as he was supposed to be and tainted the case to a point where those victims have lost three and a half years of pre-trial practice to gain that closure.  The government is held to a higher standard, that is why they are the government.  Only by holding our public servants to the highest standard each and every day do we ensure justice for all Americans.  If you fumble on the one yard line it’s still not a touchdown, even if you ran 99 yards to get there.I’ll end with this quote from the Opinion, as it’s incredibly important to think about when considering legacy and implications:
    “Any person, judge or not, could be forgiven for struggling to navigate such a sensitive situation. And that is precisely why judges are forbidden from even trying.”   

  25. Anonymous says:

    Spath had to have known that his future employment would be a conflict of interest sitting on Nashiri’s commission. Even more telling is the fact he disclosed his involvement with the Nashiri’s commission, but in two years never disclosed it to Nashiri’s defense counsel. Knowing that it could’ve created bias, even if it didn’t, meant he should’ve disqualified himself.

    “[t]he problem . . . is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges.”Liljeberg, 486 U.S. at 864–65.”
    “Spath’s job application, therefore, cast an intolerable cloud of partiality over his subsequent judicial conduct. Al-Nashiri thus has a clear and indisputable right to relief.”

  26. John Marshall says:

    Pontius [Pilate?]:
    Your attempt to redirect criticism to the defense attorneys here is really obscene.  Obviously, the DC Circuit found no fault in their conduct.  Justice Jackson’s opening words at Nuremberg are a rebuke to your obvious inference that Nashiri’s attorneys should accede to his guilt rather than giving their client a vigorous defense: 

    “That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”

    The “judgment of the law” from the most prestigious federal court below the SCOTUS is that the government was in the wrong here, and the defense was in the right for bringing the matter to the court’s attention.  Defending people accused of terrible crimes, using all legal means, is consistent with our proudest traditions and date back at least to John Adams’ defense of the soldiers accused in the Boston Massacre trials.  Adams referred to his defense as “one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.”
    So, too, have people like Captain Brian Mizer (who was recalled to this case by SECDEF, not because he asked for it) honorably rendered their service to the rule of law and, thus, by their legal skill and diligence forced Power to pay tribute to Reason.
    Perhaps you’re right in praising Judge Spath’s service, but your obvious misplaced bitterness towards the defense poisons any weight your words might otherwise carry.  

  27. GuelphD says:

    Reader:  As providing material on my “indictment,” I can tell you the following:  (1)  I am still subject to the UCMJ; (2) I once filed an IG on some of these matters both with the DoJ and the DoD.  I never heard back from either.  Unlike some people who stay anonymous because they don’t want to have their business effected, I am staying anonymous because I have already once been retaliated against.  Remember the time that one of our peers was driven off active duty for a facebook post (an SVC that I happened to agreement) that urged support of a military justice reform effort.  She was disciplined for “political activity.”  Well, the current TJAG encouraged we write articles opposing Gillibrand when he was an O7 select.  BTW, seeking an investigation isn’t all that drastic of an action. 
    Pontius: there are times when otherwise good people who are dedicated to the defense of the nation stumble or lose their ethical bearings.  The right to a fair trial includes the right to an impartial judge.  These rights exist in military commissions and are, in fact, an international standard.  The rules of ethics violated here constitute a grounds for investigation, particularly so because Judge Spath is still a judge.  His negotiation over salary and start date, his use of a profound ruling (that he didn’t write) to gain employment with the AG while the DoJ appeared before him, all served to undermine the right of the accused.  The ethics rules in this case are not “statements of hope,” rather they are rules.  There is a real good question as to whether he should remain a judge.  To your point about the victims of the accused’s offenses waiting longer, the fault here is with the government, not the defense.  And, assuming that the CVRA applies in this instance, the rights of an accused person supersede the statutory rights of the victims.  This has been decided by the courts of appeal on more than one occasion. 
    Your redirect on the time delays reminds me of debates where one side claims that football is a dangerous sport and the opposing side makes the comment “hey your claims are weak because you aren’t opposing aluminum bats in baseball.”  Its silly, and does not credit you.

  28. rmchl says:

    Today’s opinion reaches beyond just post-retirement jobseeking. Every time a military judge submits for a promotion board or advanced schooling or reassignment it’s basically an “employment application.” The applicant judge will fare poorly if his or her rulings have angered the TJAG. 

    You mean there is UCI in the ranks of the Judge Advocate General Corps?

  29. Pontius says:

    Spath should have disclosed him employment because it created the APPEARANCE of partiality.  No doubt.  But to assail the man’s character, demand his recall for court-martial, and seek disbarment based on pure supposition that he was ACTUALLY biased..totally inappropriate.  It’s the sort of baseless clamor that causes people to tune out defense attorney’s like a whiny child.  I wonder how those attorneys who are calling for Spath’s head would appreciate such baseless rancor targeted towards their clients.  I suspect they wouldn’t.
    John Marshall- I find it ironic you quote from the Nuremberg trials.  How long did it take to try 24 Nazis? Less than a year.  And who were the judges?  The victorious parties.  Yet, you seem to tout them as an example of impartiality and due process.
    GuelphD- I’ll explain more clearly why the defense delays matter.  Because it serves to explain why Spath was trying to move the case along wholly unconnected to his employment.  Nashiri was captured in 2002 and still has not gone to trial.  Spath inherited the case and was tasked to move it forward.  This is a difficult task when defense attorneys make numerous requests for immaterial evidence (among other things) in hopes that they can delay the case.  It’s made even more difficult when defense attorneys cloak what would otherwise be a clearly unethical delay with the garb of legitimacy by claiming that the evidence is more material than it really is.  Did Spath try to move things forward, yes.  Did he do it because he was secretly biased against Nashiri, there’s no evidence of that.  He was simply doing his best to move a case forward in a broken system that defense attorneys are all to happy to keep broken.

  30. Dew_Process says:

    @ Pontius = interesting moniker. “The ultimate persecutor. If this person is against your way of living, sense of humor, or ethics, he or she will do whatever they can to take you down.” [The Urban Dictionary].
    But you protest too much – it would appear that you are a Commission’s prosecutor or Spath’s law clerk. So, how do you explain Al-Nashiri’s location from 2002 when he was captured, until  2006 when he “got” to GTMO??  How do you explain his waterboarding and the destruction of the videos of that, even after a preservation Order?  Most of the “discovery” issues pertain to that 4 year period which is relevant to his purported confession(s). Discovery does not depend on “materiality” but perhaps why this litigation is prolonged – it may have no relevance other than to lead to relevant evidence.  And, here’s one for you, if it was so “immaterial,” why not let the MJ review it in camera and make a specific finding of immateriality or irrelevance. Spath’s done that plenty of times before!

  31. former af_dc says:

    Pontius, you would have more credibility if you didn’t spend all your time attacking the defense team for doing their jobs.  You’re upset that this process has taken nearly two decades? Blame a process that handicaps the defense and makes them beg for discovery. Blame the various U.S. institutions that (allegedly) maltreated Nashiri to the point that he is now disabled, and blame the prosecution for attempting to stop the defense from using that information. Blame the attempt to “try” a suspect without any of the procedural safeguards that the U.S. justice system provides, with lawyers who are duty-bound to preserve their client’s rights. Blame the attempt to use “evidence” derived from what I will euphemistically call “enhanced interrogation.” And yes, blame a judge who should have known better than to seek employment from a party appearing before him (as did, unbelievably, the NEXT judge appointed to take his place, Col Shelly Schools.) 
    Full disclosure: I worked on the Nashiri team. I also knew and practiced in front of Col Spath in the past, and liked him. At that time I, too, found him to be above reproach.  I thought he was fair, straightforward, and unusually easygoing. He did not tolerate nonsense but could also roll with the punches. So I don’t have it in for Spath. But I think he failed here, as he did when he held BG Baker in contempt. He was frustrated with his inability to move the case along, as he had been directed to do, and he let it affect his judgment. It makes me sad that his legacy is now this, rather than his many years of excellent service. 
    But I’m glad the court ruled the way it did. I think it was the right call. I think that even an alleged terrorist — especially an alleged terrorist — deserves to know that the person overseeing the proceeding that might lead to his execution is fair and impartial. And it’s important that the rest of the world knows it a swell. 

  32. Anonymous says:

    The irony in this is that Judge Spath was tasked to move the Nashiri commission along, however all of the the rulings from the three years are now thrown out due to his actions.

  33. Isaac Kennen says:

    This is just what happens when you apply the impartiality rules that adhere to every other federal judge to the institution of military judges. 
    All military judges have the same inherent conflict of interest that Judge Spath encountered in this case: Their future assignments are all dependent on the discretion of an Executive Branch official who is institutionally aligned with the prosecution. Favorable assignments from that Executive official drive promotions. Promotions drive tenure of service.
    Judges know this. Everyone appearing in front of them knows it. Everyone in the gallery knows it. We just pretend otherwise.
    This opinion from the DC Circuit shows that our arguments for exceptionalism – that such patent inherent structural conflicts of interest don’t matter – fall hollow when they are sounded before a Court that is truly independent. 
    That’s the take-away from this saga.
    Judge Spath’s conduct – seeking favorable future assignment treatment from an Executive Branch official who is aligned with a party in the case they are hearing – is an unavoidable sin repeated in military courtrooms across the world, daily. Its a corruption that is structural in nature; not attributable to a single man. 

  34. TC says:

    How can you limit that analysis to military judges?  If what you say is accurate, doesn’t that same inherent conflict of interest exist for all TCs, DCs, SJAs, appeallate counsel, and everyone else associated with military justice?

  35. Philip D. Cave says:

    Time to give all cases that are not pure military offenses to an Article III judge.

  36. Nathan Freeburg says:

    TC:  Well, yeah.  That’s why CDCs get retained (well at least one reason).
    Phil: Solorio has always been the issue.  Thurgood Marshall’s dissent in that case is always worth a look.

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

    Just shut the commissions down and turn over these cases to the district courts.

  38. Curtis says:

    I agree with TC’s last but would take it a little further down the military road. A military commander expects,
    a lawyer who represents the government (military) to be ethical in enforcing the law and even, oddly enough, resist command influence should that rear its head.
    on his behalf, he expects a lawyer who will further the mission of the commander. For instance, the JAG at NAVCENT and sanctions enforcement against those caught breaking the embargo and sanctions. The defense is represented by counsel and many times it’s civilian counsel.
    he expects a JAG who will look into the furtherance of military justice and the punishment of those who have committed real crimes against the UCMJ and not legal counsel to support the chelsea mannings and berg bohdals of the world. The UCMJ applies to everybody or nobody and we’d prefer to see it apply to those it is oriented at.
    when it comes to judges, JAGS, SJA, etc, we accept a certain amount slave trading. I’ve not been there to divy them up at the promotions boards but let us simply say they share the same problem all Staff Officers have. They are weighed in the balance on their written fitness reports on basically how well they did their job supporting the command. I see the problem. It’s a no brainer. However, it applies to the Chaplain Corps, Nurse Corps, Dental Corps, Civil Engineering Corps, Strategic Weapons branch (defunct) and a number of others. My uncles were all doctors drafted by the army and the general I know very well who knows them all said he would have hated to have one of them ever work for him in any capacity. That uncle knew no authority beyond his own conception of what was right.
    It’s an interesting discussion and it certainly needs talking about but I’m not sure if there is a solution I would find palatable. Military justice requires justice that upholds the commander on the UCMJ. Every single modern aspect of law seems designed to tear that down and uphold the rights of the accused beyond the bounds of reason. The gitmo trials are an obvious case in point. At this point they could have thrown themselves on the mercy of the court long ago and have been free men now. 
    I hate to drag this in but I’m reading tongight about Mark Steyn’s case in the DC court which has now dragged on for 8 years without any hope of resolution. If that’s justice in the modern canon? I’d fire it off.
    There’s not really a lot of justice when the case boomerangs forever while one remains stuck in jail for decades waiting for a legal settlement.

  39. Kafka, Esq. says:

    Curtis, um, what? If al-Nashiri et al had “thrown themselves on the mercy of the court long ago,” they would be free men now??? You do realize that the Government is trying to KILL some of these defendants, right? As for your lament that “[e]very single modern aspect of law seems to … uphold the rights of the accused beyond the bounds of reason,” I respectfully beg to differ.  Just see the 2016 MJA, CAAF’s decision today in McDonald, the SVC program, the UCI we all know (and can sometimes prove) happens, etc., etc.

  40. SeñorTC says:

    While I’m in favor of the Commissions being transferred over to civilian courts, and also believe Spath should certainly have disclosed the situation to counsel, I’m also grateful that we’re in a system where this rather attenuated bias leads to such a fierce debate.
    And for those who do rave about how the bias means the system can’t work at all–I assume you also believe that all elected judges should also be recused, if there’s reason to think they might be afraid their decisions could affect votes or lead to a recall?  (let alone campaign contributions!)
    Or any magistrate or Article III judge who might be aspiring to elevation to a Circuit position, or higher?  Or those that publish, and might have some vested interest in how their public persona is received?
    None of that is to defend Spath for not properly disclosing his attempts to seek employment.  But let’s not rail against the system as inadequate solely by comparing it to a platonic ideal.  It’s worth noting the military justice system is perhaps the most paternalistic and defense-friendly jurisprudence in the United States.

  41. Anon2 says:

    So well said, Isaac. 
    Let’s also remember the TJAG’s powers to punish individual judges. Three years ago a TJAG overruled the recommendation of leniency by a chief trial judge and reduced a military judge from O5 to O4 in retirement for his conduct in the performance of his duties in a 120 case.
    Hosannas for the military justice system are all fine, but given every service’s complete commitment to lobbying against Senator Gillibrand’s proposals, a defense attorney is probably not providing effective assistance if he or she fails to build a record of a judge’s apparent conflict of interest. Especially in a 120 case. Military judges who aren’t highly attuned to Pentagon priorities are guaranteed to fail. 

  42. Kafka, Esq. says:

    I’m perplexed as to the various comments along the lines of Spath’s actions constituting a “rather attenuated bias.” What he did was blatant — blatantly stupid and blatantly against the rules. It’s not an attenuated bias. It’s straight-up B-I-A-S, whether apparent or actual (although I’d argue it was actual). 
    Further, what Spath did is illustrative of the AFJAGC’s overall approach to ethics — an approach that is laissez faire at best, malpractice at worst. There is a pervading sense that “the rules don’t apply to us cuz we’re MILITARY lawyers!” You’ve got to love an employer that says its professional rules trump those of its attorneys’ state bars. And if there is any doubt whatsoever about this rules-don’t-apply mentality, look no further than Vargas and Barry (proving this isn’t just an AF problem). It’s a problem that starts at the top and has infected an entire generation of SJAs, judges, TCs, DCs, paralegals, you name it.

  43. SeñorTC says:

    Yes, Spath was seeking employment as an ALJ for the DOJ, in immigration law.  Some parts of the DOJ had consulted regarding the set up of the commissions.  Compared to recent examples–say, a topical one today, picking an Attorney General who’d previously lobbied the DOJ (or at least submitted written matters regarding) that Obstruction of Justice wasn’t possible by the President, that seems like a more direct bias.
    One could easily argue that a judge ruling on cases against the President that nominated him or her–who they are dependent upon for any elevation, is a much more overt bias.  And to continue with the topical example of the Mueller cases, certainly the public tongue-lashings some of the judges in recent cases have offered (along with significant deviations from sentencing guidelines) would also suggest possible bias running around the system.
    Again, I agree he should have disclosed it, and that his failure to disclose it helped create the appearance of bias.  But let’s not pretend this is evidence of any more concerted a conspiracy to bias his actions.

  44. Vulture says:

    If Judge Spath was indeed tasked with moving along the Commission trial, then his OER depended on it.  Being of the pedigree  that produces a Chief Judge and then taking the reigns of the notable Commission, it’s pretty safe to say that he wasn’t concerned about getting the job of immigration judge.  If Judge Spath was talking himself up that much, he was looking at a bigger prize.
    He let himself become a piece of performance art.  Now he is a cautionary tale.

  45. Babu says:

    AF should ask the SG to file a writ petition, relying on NMCCA’s recent decision in Hutchins. There, NMCCA found that there is no problem if a military judge is seeking employment with a party to litigation.  Rather, there is only a problem if that party has explicitly stated that favorable rulings from the judge would be rewarded.  So under the NMCCA standard, the DC Circuit clearly has it wrong: as the AG never made any statements about rewarding Commission judges for their rulings, there was no conflict of interest.  
    From NMCCA’s opinion in Hutchins (*52):         
    “The appellant implies that the military judge’s post-retirement employment aspirations with the Department of Defense and possibly the Department of the Navy are evidence of UCI. Without evidence that SECNAV retaliated against—or rewarded—anyone for their actions resolving the Hamdaniyah cases, such an implication is bare allegation and speculation.”

  46. J.M. says:

    he should have been disbarred when he traded his integrity in to satisfy SVCs desire to yank a judge in Vargas. Every bad actor in that should never have walked into a court room as a lawyer again. 

  47. Allan says:

    I am not sure why Hutchins matters to this case.  The only similarity I found is that, after retiring, the MJ in Hutchins, like the MJ Spath accepted employment with someone with influence of the case.  There is no allegation that I found that the MJ in Hutchins was seeking the position while he was trying the case or that he failed to notify the defendant if he was.  Had there been such evidence, perhaps the NMCCA would have come to a different conclusion.  Maybe there is something I did not see.

  48. TC says:

    Can you tell us some more about this (or direct us to somewhere the info is publicly-available)?: “Three years ago a TJAG overruled the recommendation of leniency by a chief trial judge and reduced a military judge from O5 to O4 in retirement for his conduct in the performance of his duties in a 120 case.”
    Was a military judge court-martialed?  Why was the chief trial judge recommending leniency for another judge?  What service was this?  Thanks.

  49. stewie says:

    TC, aren’t the motivations of the MJ just a bit different from TC and DC?
    DC are rated on working on behalf of the client…so the motivations match up with their role.
    TC are rated on doing justice…so certainly some potential issues there for sure, but not necessarily inherently so (if COJ et al are doing the right thing then there’s no issue, if not then there certainly could be).
    MJ are supposed to be neutral arbiters. Seems to me issues of bias are the most important for them.

  50. Nathan Freeburg says:

    TC: it was Army. He received a GOMOR and the OGD reduced him in rank. It was for bridging the gap comments. 

  51. allan says:

    I think that is a bit naïve.  It really depends on the TJAG.  An unscrupulous one can certainly torpedo a career.  And a DC, TC, COJ, or MJ worried more about his/her promotion potential than representing the best interests of his/her client could cause havoc.  On the other hand, anyone who is a MJ is about at the end of their promotion potential.  There is a possibility of becoming an O-6 (or O-5 for some Marine judges), but it is extremely unlikely that a given JAG officer will become an O-7, let alone one who is an MJ as opposed to (in the Army) the SJA for a corps.

  52. Omar says:

    As a regular (but reasonable) guy sitting in the bleachers watching, I cannot understand how the Chief Prosecutor can claim candor toward the tribunal in light of their response to the Defense motion for discovery re Judge Spath’s employment seeking activities.  Mr. Cave’s initial comment on this thread hits the nail on the head.  BG Martins calling the defense request nothing more than “unsubstantiated assertions” is simply incredible.  Even wildly assuming that the prosecution had no idea of Judge Spath’s dealing for future employment, an issue of such importance would seemingly mandate that some minimal amount of inquiry take place.  A 1 question voir dire of the judge (are you seeking future employment with DoJ?) would be all that’s needed.  Less time than it took to write their response to the defense motion.  
    Indeed, I believe culpability lies foremost with Judge Spath, with the office of the prosecution running a very close second.

  53. TC says:

    True, but the defense could have asked that same voir dire question of the judge.  While I agree that it would have been fairly easy for the prosecution just to ask the question once they received the discovery request, I think it’s going way too far to suggest that amounts to some sort of ethical violation.  The defense always has an easy remedy if the government denies a discovery request – bring a motion to compel.  It would be another story if the prosecution was in possession of this info but still said the defense’s request was based on “unsubstatiated assertions.”  But based on what I’ve read here, there doesn’t seem to be any reason to believe that was the case.  Some commenters on this blog are often really quick to allege ethical violations and recommend bar complaints.  I think that’s way over the top for the prosecutors here.    

  54. RetJA12 says:

    Omar  – you are absolutely right on the prosecution.  I don’t know about the Army judge.  It strikes me that this is the same judge (Spath) that wanted fast boats and first class seating to and from GTMO.  Maybe testing a officer’s sense of ego and importance is a key before assigning to a judge position (let alone a judge on the commissions).  Seriously though, there are a number of allegations listed in several comments about the judge, the system, and prosecution, the seemingly welcome pathway to the immigration courts as a judge for Air Force judges.  Perhaps there ought to be a congressional hearing on this point.  After all, if, as Guelph states, we want immigration judges to do their job – part of their job is to dispassionately rule on status and do so with the confidence of not undermining the principles of fair and impartial hearings.  Maybe there is just too much of a personal connection in these processes which cause the participants to overlook each others faults.  Maybe the Air Force leadership in the Fiscus and Murphy cases should have taken a look at what meritocracy means, rather than pay lip service to it.  After all, the mouthpiece of that word, meritocracy, Harding (and his predecessor who proclaimed it as a core value), also backed granting Murphy a RILO – and Murphy was their friend

  55. Curtis says:

    Kafka, we slipped over the bounds of reason when we were given to understand that all of Spath’s rulings were null and void which voided 3 plus years of rulings which returns the game to the point of what? 
    -Gov says they’re terrorists.
    -Def says no they aint, they’re all good boys and the judge is B I A S E D. So toss all proceedings from the last 3 years and let’s start over again.
    -Curtis says, if you keep that up just what exactly is the distinction between justice and no-justice? The gov’s pockets are deep, their lack of B I A S noticable and yet they will/can maintain their case forever or just long enough to see all the terrorists die in Gitmo.
    My question remains, where’s the justice in that?
    Oh sure, there are grandees of the law that will maintain that clearing someone a hundred years dead of the crime he was convicted of meets some sort of point of law but to the dead guy or the ones imprisoned forever, it is a vanishingly small point of law.
    Most of those guys, need to die. The rest should do, oh, what is that legal term……? plea out and hope for leniency because the truth is clearly on the gov’s side in their cases otherwise Bush or Obama would have let them go along with the other 800 they let go.

  56. Advocaat says:

    This site does a great job discussing the many problems in OMC cases and courts-martial.  From a defense perspective, I’d still take a military circus over the majesty of federal district court any day of the week.  Congrats, or something, for those who get their wish to have “real” judges, juries, and jails.  Speaking of circuses, gotta run back to my next immigration hearing (JUST KIDDING!).

  57. stewie says:

    Plenty of O5 judges in the Army Allan, and just because someone is an O6 doesn’t mean they don’t care about their prestige or next assignment.

  58. Nathan Freeburg says:

    It’s ridiculous to suggest that anyone accused of sexual assault after a one night stand would prefer UCMJ jurisdiction to a civilian one.
    If you’re talking about non-120 cases it is a more interesting discussion.

  59. Allan says:

    I am aware that there are plenty of O-5 judges (and in the Marines there are some O-4 judges).  In fact, I knew a few, all of whom were promoted to be O-6 judges.  I did not know any judges who were assigned to non-MJ positions.  Instead, they stayed as judges until they eventually retired.  I was unaware that there are O-6 judges who are assigned to other positions (I never reached the rank myself).

  60. Vulture says:

    Army TDS Major writes scathing article on recidivism.  Reassigned to JAG school.
    Becomes Army O-5 judge. re-assigned as USASFC SJA.  
    Returned to military judge status.  Re-writes rules of trial conduct.
    Receives award as Chief Circuit Judge for the U.S. Army Judiciary.  
    Also bought you waiver mania.  
    Judge Spath is going to, regretfully, bleed for this decision.  Others, maybe not all, are blood suckers, bred in the darkness.

  61. J-Elcano says:

    Vulture – Lets bring this full circle back to the expected conduct of judges.  Al-Nashiri is a criminal of the highest magnitude.  But for those people who focus on this fact on this blog or in other writings, we should be reminded that there is one person at fault for the delay, and this person – according to the Court of Appeals for the District of Columbia in a very sound and forthright decision – is Judge Spath.  And, I might add, only Judge Spath.  To be sure, you can criticize defense counsel in other matters, including in this case, of being dilatory and harming the victims through their tactics.  That type of criticism is your right.  But on matters of law, which the judge should be the commander of, and ethics, which the judge was bound by, he failed, utterly and miserably failed.  This was a dereliction of duty in a significant matter that exceeds the UCMJ definition – and it was a violation of law.  For those who criticize the defense and minimize his omission, I can answer that we are lucky that this case is still going to trial.  The ECHR would find the matter reversible error.  The Court in a series of judicial ethics cases simply remands.
    If the judge “bleeds” as Vulture states – and I don’t know if Vulture laments this or not though he uses the word “regretfully – there is nothing regretful about it.   One of the purposes of removing or censuring judges is to deter other judges from acting in the same callous manner as the offender.  Deterrence in judicial removal and censure – an administrative matter – is one of the two purposes of judicial discipline.  Geiler v. Commission on Judicial Qualifications, 515 P. 2d 1 (CA 1973). 
    I am not suggesting that Judge Spath be disbarred or censured in regard to his license in this post.  I am suggesting that the TJAG (or perhaps higher since, as Guelph implies that there is an untoward relationship) investigate Spath’s conduct and make it known that this is occurring. 

  62. Vulture says:

    I am a vulture, not a shark.
    There is  a joke: What is black, white, and red all over?  It doesn’t drive me into a frenzy that one answer is, “A wounded bench zebra.”  Watching Judge Spath has been like watching Leslie Nielson in the Naked Gun.  But scars make for better stories than tattoos.  So let him take his hit and move on.  That is how the military justice system was supposed to work in the first place.
    Only the undead can’t understand the idea that what doesn’t kill me makes me stronger.  Read that, “Finger the recidivists.”