The trial against the al-Qaeda terrorist accused of killing 17 American sailors in the attack on the USS Cole—which was was hit by explosives while harbored in Yemen in 2000—suffered a serious setback this week. 

The U.S. Court of Appeals for the D.C. Circuit issued a decision in the Guantanamo Bay military commissions’ case that will complicate, if not derail, the government’s efforts to bring Abd Al-Rahim Hussain Muhammed Al-Nashiri (hereinafter Nashiri) to justice. 

The court threw out (vacated) all orders of the military judge—Col. Vance H. Spath—from November 2015 because he should have recused himself from the case when he applied for post-retirement employment as an immigration judge. 

His conduct created a “disqualifying appearance of partiality.” The court’s reasoned and thorough decision, if not overturned, forces the government to re-group and decide how (or whether) to move forward with a case that has dragged on for years. 

A Complex Case

The case is complex and has a long history. The first military commission case against Nashiri fell apart in 2009 for a variety of reasons. The government brought a second case against him in 2011. 

As of March 2017, there were 436 substantive written motions, 327 of which were argued orally. The commission had received testimony from 33 witnesses in more than 58 hours of testimony. The government provided over 265,930 pages of discovery to the defense. 

According to the government brief in this appeal, during the four years that Spath presided over the case, he “issued approximately 460 orders.” Given the time Spath has been on the case and the ruling from the D.C. circuit, about half of his orders (230) are now vacated.

A member of al-Qaeda, Nashiri is a citizen of Saudi Arabia, and one of the 14 high value detainees brought to the detention facility at Guantanamo Bay, Cuba, in September 2006 from CIA custody during the George W. Bush administration. He is held by the United States government as a law of war detainee. 

According to the U.S. government military commissions website, Nashiri was charged in 2011 with murder, attempted murder, conspiracy, and other crimes out of an attempted attack on the USS The Sullivans in January 2000, the attack on the USS Cole in October 2000, and the attack on the MV Limburg in October 2002. 

In total, 18 people were killed and almost 50 were injured in those attacks. If convicted, Nashiri could receive the death penalty.

A colonel in the Air Force Judge Advocate General’s Corps, Spath was the judge in Nashiri’s case from July 10, 2014, until Aug. 6, 2018. During his four years on the case, he issued approximately 460 written orders. After six years of pretrial proceedings, Spath announced in March 2017 that the parties should prepare for the trial in 2018. 

On Nov. 19, 2015, while he was presiding over the Nashiri case, Spath applied for a job with the Department of Justice as an immigration judge. He did this, despite the fact that the DOJ was involved in the case, having detailed an experienced attorney to assist with the prosecution. 

According to the U.S. Court of Appeals for the District of Columbia Circuit, Spath “never disclosed the fact of his application, much less its details, to Al-Nashiri or to his defense team.” 

In his application, which came to light through a Freedom of Information Act request by the Miami Herald, Spath highlighted his “five year of experience as a trial judge,” that he had been “handpicked” to preside over the military commissions case against Nashiri, and he even included, as the D.C. Circuit noted, “a writing sample … he issued in Al-Nashiri’s case.” 

Spath got an offer of employment from the DOJ to serve as an immigration judge in March 2017 with a start date of Sept. 18, 2017. 

Spath requested a start date of May 15, 2018, but the DOJ demurred, stating that it would “hold his paperwork and contact him again in January [or] February, 2018.” 

He was eventually informed that he could start on July 8, 2018, and a new judge took over the Nashiri case in August 2018. 

In the summer of 2018, one of Nashiri’s appointed defense counsel heard that Spath had been pursuing a job as an immigration judge while he was presiding over Nashiri’s case. 

The defense team filed a discovery request to pursue this, but the government refused to provide any information, according to the court’s opinion, “calling the reports ‘unsubstantiated assertions’ and arguing that the ‘defense 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.” 

A week later, the Associated Press ran a story about Spath’s appointment as an immigration law judge, and included a photo of Spath next to then-Attorney General Jeff Sessions during a welcoming ceremony for new immigration judges. 

Nashiri’s lawyers filed an appeal to the Court of Military Commissions Review, or CMCR, requesting discovery and vacating Spath’s rulings, claiming that his conduct “created a disqualifying appearance of bias.” On the same day the CMCR denied the motion, the Justice Department announced the investiture of the “largest class” of immigration judges “in the agency’s history,” including Spath. After more appeals, the case ended up at the D.C. Circuit.

The Court’s Holding

Turning to the issue of judicial ethics and impartiality, the court noted that “judges must preserve both the reality and appearance of impartiality,” and they “shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.” 

Those rules apply to military commissions’ judges, and focus “not on whether a military judge harbored actual bias, but rather on what would ‘appear to a reasonable person … knowing all the circumstances.’” The question to be resolved, noted the court, was whether an average citizen would “reasonably question a judge’s impartiality.” 

The court held that Spath’s conduct fell “squarely on the impermissible side of the line.” Noting that “judges may not adjudicate cases involving their prospective employers,” the court found that the “attorney general himself is directly involved in selecting and supervising immigration judges,” that the DOJ detailed “one of its lawyers to prosecute Al-Nashiri,” and the attorney general “plays an important institutional role in military commissions.” 

The attorney general, the court continued, “was a participant in Al-Nashiri’s case from start to finish.” The challenge that Spath faced was “to treat the Justice Department with neutral disinterest in his courtroom while communicating significant personal interest in his job application.” 

Spath undermined his apparent neutrality by stressing his role in the Nashiri case in his job application, and refusing to disclose his application to the defense, according to the court. 

And to add insult to injury, the court noted that the very judge the CMCR and the government suggested should hear the appeal of one of the contested matters in the case was herself “engaged in apparently undisclosed employment negotiations with the Justice Department during the pendency of this very case.”

After explaining why it decided to vacate all orders Spath issued from the date he applied to the DOJ, the court made this sobering observation:

Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system—from the prosecution team to the Justice Department to the CMCR to the judge himself—failed to live up to that responsibility.

In conclusion, the court noted that it did “not take lightly the crimes that Al-Nashiri stands accused of committing,” but that this case required an “unimpeachable adjudicator all the more important.” 

The court’s ruling leaves the government in the unenviable position of re-starting the case from Nov. 19, 2015, if it can. It gives legal scholarswho have repeatedly criticized military commissions more ammo to argue that they are a failure and should be ended. 

It is clearly a victory for Nashiri’s defense team, and is yet another heartbreaking setback to the families of the victims who are yearning for justice.