A military judge on Monday called the top Pentagon official overseeing the war court to testify on why the Defense Department suddenly ordered judges to move down to this remote base until they’ve wrapped up complex death-penalty cases that are months if not years away from trial.
Air Force Col. Vance Spath, the judge, agreed to the testimony sought by lawyers for the alleged USS Cole bomber who argue the order to judges to move to Guantánamo seeks to illegally meddle in the war crimes trials. He told Pentagon prosecutors that the architect of the relocation order, retired Marine Maj. Gen. Vaughn Ary, should either get on a plane to Guantánamo or be available to testify by teleconference Tuesday afternoon.
Ary, just months on the job as top overseer of the war court, sought and got the rule change to relocate military judges to Guantánamo for the three ongoing trials, including the Sept. 11 conspiracy case, with an internal memo that complained about the slow pace of prosecutions.
Defense lawyers charge that amounts to illegal meddling, a sin in military justice called “unlawful command influence,” designed to unfairly rush the death-penalty trial of Saudi captive Abd al Rahim al Nashiri, 50, as the alleged mastermind the USS Cole bombing. They want the judge to dismiss the case.
They cast the open-ended relocation order to judges living with family in more comfortable settings in Italy and the East Coast of the United States as punishment that strips them of their prestigious day jobs and exiles them for not proceeding swiftly through a complicated pretrial phase to trials. The 9/11 and USS Cole case judges have spent years navigating thorny pretrial issues – such as torture and secrecy, CIA involvement in the court and evolving war court law.
Seventeen sailors died in al-Qaida’s Oct. 12, 2000 suicide attack, and the case has gone on for years, in part because the CIA spirited Nashiri off to four years of secret detention – where he was waterboarded and subjected to rectal rehydration and a mock execution.
Spath, who is based in the Washington, D.C., area, announced in court Monday that he was surprised to learn of the order last month that would strip him of his role as the chief of the Air Force Judiciary and move him to Guantánamo .
Ary, he said, must testify on “the thought process and what he’s hoping to effect” by the relocation order “because unlawful influence in any form is incredibly destructive to our process and we need to stop it and fix it, if it’s here.”
Spath continues to handle the Nashiri case as a commuter, while senior Air Force lawyers decide what to do about the relocation order.
Monday, the USS Cole case prosecutors sought to shield emails by Ary and other senior Pentagon officials from Nashiri’s lawyers – who argue the rule change was adopted by three senior Pentagon officials who pointedly did not consult senior U.S. military lawyers who would have warned it amounted to unlawful influence.
Those senior officials are Ary; Deputy Defense Secretary Robert Work, who signed the order, and Pentagon general counsel Stephen Preston, who came to the job from the CIA, which still regulates classification and therefore transparency in portions of the Guantánamo war court cases.
Navy Cmdr. Brian Mizer, defending Nashiri, called the move order “naked unlawful influence” that effectively strips Spath of his judicial independence by wrestling his residency assignment and career from the Air Force. “Were it to happen in any court martial,” he said, “alarm bells would be going off.”
Prosecutors, however, defend the order to relocate the judges to this remote base as lawful in a series of filings that were still under seal at the war court Monday. The chief prosecutor, Army Brig. Gen. Mark Martins, who has not been ordered to move to Guantánamo , nor have any other court staff, declined to elaborate in a statement Sunday night.
Nashiri, who turned 50 since his last hearing in November, returned to court for the first time following release of a portion of a Senate Intelligence Committee report that offered an explanation for his diagnosis of sexual torture: He was subjected to a quasi-medical technique called rectal rehydration during his four years of CIA custody, part of it at a clandestine site at Guantánamo .
He sat docilely in court in a rumpled white prison uniform, appearing to occasionally follow the argument.
Sunday, Nashiri’s death-penalty defender, Rick Kammen, called the order “absurd,” and said it was either designed to replace the three war court judges with “more compliant” military officers or to make sure those assigned to the case “never again rule against the prosecution” as they chart the path toward the trials of the alleged five 9/11 conspirators, Nashiri and an Iraqi man accused of running al-Qaida’s army in Afghanistan – the only three current cases at the war court.
But it is still unclear how moving the judges would speed the way to trial.
Nashiri was arraigned in 2011 and still has no trial date as lawyers and the judge continue to map out what laws and charges apply and what CIA information the defense lawyers will get and public will see.
Progress is also stymied by a prosecution appeal being heard in two separate Washington, D.C., courts over charges accusing Nashiri of engineering a 2002 al-Qaida attack on a French oil tanker called the HMV Limburg near Yemen that killed a Bulgarian crew member.
Spath dismissed that portion of the case, and the war court prosecutor wants it reinstated.
But beyond procedure, the complicated commuter nature of the court involves more than the judges.
Monday’s session was getting a late, 1 p.m. start because of a Sunday delay in the Pentagon charter flight that brought virtually every hearing participant but the accused to Guantánamo from the snowy Washington, D.C., region.
They included Defense Department contract linguists, court stenographers, attorneys, clerical and legal staff as well as the fathers of some slain USS Cole sailors, guest observers and journalists – all airlifted temporarily to the base for each week of hearings.