CAAFlog » Military Commissions

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).

Audio of last week’s argument before the DC Circuit in the al Nashiri military commission (noted here) is available at this link: Oral argument audio.

The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument this morning 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.

The argument docket page (with a link to listen live) is here.

The basis for the petition is a challenge to former military commissions judge Colonel Spath (now retired) based on the fact that while serving as a commissions judge in al Nashiri’s case prior to his retirement, he sought employment as a federal immigration judge. The writ petition is available here. The Government’s response in opposition is available here. A reply brief is available here.

Carol Rosenberg reports here:

Friday morning, on the last day of a weeklong hearing in which Eliades and Spears ignored prosecution subpoenas to appear at court by video feed, Spath assembled defense and prosecution attorneys in the court and offered a 30-minute monologue.

He listed his frustrations at having his orders ignored, uncertainty over his authority raised by the Marine general’s decision-making and inaction by Pentagon officials to help him. At one point he said he was considering retiring from the Air Force, then declared that he needed clear answers on how to proceed.

“I am abating these proceedings indefinitely,” he said twice, at one point adding: “We’re done until a superior court tells me to keep going.”

He then walked off the bench at 10:12 a.m., declaring: “We are in abatement. We are out. Thank you. We’re in recess.”

Update: Transcript available here

Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri is a Saudi accused of orchestrating the 2000 bombing of USS Cole. According to the commissions website:

Al-Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel. The charges arise out of an attempted attack on the USS THE SULLIVANS in January 2000, an attack on the USS COLE in October 2000, and an attack on the MV Limburg in October 2002.

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.

Update (Feb 14, 2018 @ ~1230 eastern): The original title of this post was based on my read of Carol Rosenberg’s reporting (quoted below). But, after reviewing the unofficial transcript of yesterday’s proceedings in the al Nashiri case (available here), I get the impression that Colonel Spath wants the civilian attorneys brought to testify remotely, by video teleconference (VTC), from the Mark Center in Alexandria, VA, and not brought to Guantanamo. Colonel Spath stated:

The witness [the civilian defense counsel] clearly refused, through counsel, because I saw the e-mail. And the Attorney Fox said they’re not showing. And I assume he can speak for them since he’s their attorney. And so I can’t see a valid excuse. Again, the e-mail that I was shown said I lack jurisdiction; I don’t. And that the — having to appear at the Mark Center by VTC for DoD civilians employed in D.C. would be oppressive, with no evidence to the contrary.

Transcript at 11909-11910. There are significant optics (if not legal) differences between a warrant of attachment to appear in Virginia and one to appear in Guantanamo.

Original post:

Air Force Colonel Vance Spath – the chief judge of the Air Force and a judge on the military commissions (and the person who held General Baker in contempt) – apparently wants federal authorities to use force to bring two DoD civilian attorneys to Guantanamo.

Carol Rosenberg of the Miami Herald reports here that:

The judge in the USS Cole terrorism case ordered prosecutors Tuesday to draft warrants instructing U.S. Marshals to seize two civilian defense attorneys who have quit the case and ignored his orders and a subpoena to appear at the war court.

Air Force Col. Vance Spath, the judge, said he would sign the “writs of attachment” on Wednesday and cautioned from the bench that the lawyer for Pentagon-paid attorneys Rosa Eliades and Mary Spears should hustle to federal court, if the lawyer wants to stop what are essentially arrest warrants.

A warrant of attachment (see R.M.C. 703(e)(2)(G)(i); R.C.M. 703(e)(2)(G)(i)) is a “legal order addressed to an official directing that official to have the person named in the order brought before a court.” R.M.C. 703(e)(2)(G)(i) (discussion). The Manual for Courts-Martial provides the following discussion:

Subpoenas issued under R.C.M. 703 are federal process and a person not subject to the code may be prosecuted in a federal civilian court under Article 47 for failure to comply with a subpoena issued in compliance with this rule and formally served.

Failing to comply with such a subpoena is a felony offense, and may result in a fine or imprisonment, or both, at the discretion of the district court. The different purposes of the warrant of attachment and criminal complaint under Article 47 should be borne in mind. The warrant of attachment, available without the intervention of civilian judicial proceedings, has as its purpose the obtaining of the witness’s presence, testimony, or documents. The criminal complaint, prosecuted through the civilian federal courts, has as its purpose punishment for failing to comply with process issued by military authority. It serves to vindicate the military interest in obtaining compliance with its lawful process.

R.C.M. 703(e)(2)(G)(i) (discussion).

Carol Rosenberg also reports that:

The judge had earlier Tuesday expressed a reluctance to have the women seized. He said in court that their arrests could cause them to lose their security clearances and jobs with the Department of Defense and thwart his goal of having them return to the defense team of Abd al Rahim al Nashiri.

That’s a pretty unrealistic goal, particularly since Rule for Military Commissions 502(d)(3)(C) states that civilian defense counsel in a military commission must:

[have] not been the subject of any sanction of [sic] disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct

Such sanction or disciplinary action seems to be inevitable (if it hasn’t actually happened already). This is – by the way – a unique rule for the Guantanamo commissions; there is no similar limitation on civilian defense counsel in courts-martial.

But even if al-Nashiri’s former civilian defense counsel aren’t disqualified by rule, there’s the fact that now facing a real threat of arrest and involuntary relocation to Guantanamo, they almost certainly have a conflict of interest with the accused.

And we know what that arrest will look like, because it’s happened before. The last person subject to a warrant of attachment from a military commission was demobilized Navy Reserve Lieutenant Commander Stephen Gill – a judge advocate – who (also according to Carol Rosenberg’s reporting):

was picked up at his home, apparently in Massachusetts, on [Tuesday, October 18, 2016] “at gunpoint,” he estimated by 20 officers, put in three-point restraints and held overnight at an Alexandria County, Virginia, detention facility.

In a press release dated yesterday and available here, the Office of Military Commissions Convening Authority announced that the finding of contempt against Marine Corps Brigadier General John Baker by Air Force Military Judge Colonel Vance Spath – a finding that I analyzed in this post and concluded exceeded Spath’s statutory authority – is correct in law and fact.

The convening authority (Harvey Rishikof) disapproved the punishment of confinement for 21 days and a $1,000 fine. BGen Baker served three of those days of confinement in his quarters at Guantanamo before the remainder was deferred.

The convening authority also announced his intent to refer the matter for an ethics review.

The full text of the release is after the jump.

Read more »

Marine Corps Brigadier General John Baker – chief of the Military Commissions Defense Organization – was ordered into confinement today by Air Force Military Judge Colonel Vance Spath, who found the General in contempt for in connection with the release of three civilian defense counsel from the case of Abd al Rahim al Nashiri (who is accused of orchestrating the 2000 bombing of USS Cole).

Carol Rosenberg of the Miami Herald reports here that:

The USS Cole case judge Wednesday found the Marine general in charge of war court defense teams guilty of contempt for refusing to follow his orders and sentenced him to 21 days confinement and to pay a $1,000 fine.

. . .

In court Wednesday, Baker attempted to protest that the war court meant to try alleged foreign terrorists had no jurisdiction over him, a U.S. citizen. Spath refused to let him speak and ordered him to sit down.

“There are things I want to say, and you are not allowing me to say them,” Baker told the judge.

Spath replied, “This is not a pleasant decision,” calling the proceedings neither “fun” nor “lighthearted.”

. . .

The judge said in court that a senior official at the Pentagon, Convening Authority Harvey Rishikof, would review his contempt finding and sentence. Meantime, however, he ordered court bailiffs to arrange for the general to be confined to his quarters — a room in a trailer at Camp Justice, behind the courtroom — until Rishikof acted or found a different place.

Rishikof had approved the site provisionally, Spath said, and was permitting Baker to have internet and phone communications at his quarters.

Additional details about the release of the three civilian attorneys is available in this report (also from Miani Herald reporter Carol Rosenberg).

A variety of outlets (here (FoxNews) and here (The Hill)) report on the POTUS’s decision to defer to SecDef Mattis on whether the US will use interrogation methods that some have argued constituted torture under international law. It is unclear if SecDef’s view, which is that the US should not use interrogation techniques such as waterbording because they do constitute torture, will be applied to DOD actions abroad or all US agency actions abroad. The Army Field Manual has always prohibited torture, including waterboarding, so DOD operations are clearly governed by SecDef’s view. But it is unclear if CIA covert actions would be bound by SecDef’s view. 

Thoughts on how US policy on torture has now been shaped by judge advocates?  Anyone ever advise then-General Mattis on this topic?

The Miami Herald reports here that in the aftermath of the apparent unlawful command influence issue in the Commissions, involving a since-rescinded requirement that judges live at the venue of the trial (Guantanamo Bay) for the length of the trial, “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.”

Spath, in court Monday, called dismissal “not appropriate” in this instance. Instead, he disqualified [the convening authority, retired Marine Major General Vaughn] 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.

Update: Wells Bennett has an excellent writeup of Col Spath’s order in this post at Lawfare Blog.

Thanks to a Commenter, we now have the rescission of the order (here) that MC judges move to Gitmo until the cases are completed.

Here is a link (courtesy of Lawfare) to the Hicks case decision from U.S. Court of Military Commissions Review (USCMCR) .  The Feb. 18, 2015 decision (I am a little tardy), after finding that Hicks waiver of appellate review . . . didn’t waive appellate review, set aside his guilty plea to providing material support to terrorism, in violation of 10 U.S.C. § 950v(b)(25) (2006), and the sentence based on Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (en banc).  If you’ll recall, here (Lawfare), Al Bahlul found that (as summarized by Judge Kavanaugh):

A military commission may not try the offense of material support for terrorism for conduct that occurred before enactment of the 2006 Act. All seven judges likewise conclude that a military commission may not try the offense of solicitation for conduct that occurred before enactment of the 2006 Act. The Court is unanimous that those two offenses were not war crimes triable by military commission at the time of Bahlul’s conduct in 2001. Therefore, all seven judges agree that we must vacate Bahlul’s material support for terrorism and solicitation convictions as ex post facto violations.

Since Hicks has long since been released from Gitmo, this doesn’t do much for him.  His defense counsel should get an astro-turf rug in front of his door (sorry, bad Code 45 tradition). WSJ coverage here.

More to follow, here is the order.  Prior coverage from the WSJ here.

Here (Feb. 12, 2015), here (Feb. 11, 2015), and here (Feb. 9, 2015) are links to reports from the US v. Khalid Sheikh Mohammed, et al. (9/11 conspirators) Military Commission hearing. NIMJ’s volunteer observer for these hearings was NIMJ President Dru Brenner-Beck.

Here (Sep. 26 Part 1), here (Sep. 26 Part 2), and here (Sep. 28) [Update:  here (Jan. 29, 2015)] are links to reports from Monday, September 26, 205 and Wednesday September 28, 2015 at the Al Hadi Military Commission hearing. NIMJ’s volunteer observer for these hearings was Malcolm Savage, a student at the University of Richmond School of Law.  Thank you Malcolm for taking time to go to Gitmo.