Government

Judge Tatel Renders GITMO Verdict: It's A Sh*tshow

The effort to pass laws to bar alleged terrorists from the U.S. court system so they're forever locked up on extra-judicial island is pretty much a failure.

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(Image via Getty)

In retrospect, maybe torturing Abd Al-Rahim Hussein Muhammed Al-Nashiri at a black site in Thailand and then parking him indefinitely in a Cuban no-man’s-land was a lousy way to get justice for the victims of the 2000 U.S.S. Cole bombing. Because earlier this week, a three-judge panel of the D.C. Circuit unanimously tossed three years of work on the case because the presiding judge failed to disclose his conflicts and the prosecutors actively tried to conceal them. So in the 17 years since the CIA picked him up in Dubai, Al-Nashiri’s case has only progressed to the pre-trial hearing stage, and a resolution for the 54-year-old defendant — and his alleged victims — is nowhere in sight. Which is really no way to run a railroad!

The case against Al-Nashiri has been FUBAR from the get go. Under the supervision of current CIA Director Gina Haspell, the agency subjected Al-Nashiri to extensive waterboarding, mock executions, and beatings in an effort to extract information about potential attacks on Americans. All of which presented certain … evidentiary problems when it came time for the government to mount a case against him, even under the relaxed rules of the military commission at Guantánamo Bay.

Charges against Al-Nashiri were originally filed in 2007, dropped in 2009, and then refiled again in 2011. By 2014, when Air Force Colonel Vance Spath was appointed to adjudicate, the parties were still litigating the admissibility of the mountain of evidence collected all over the Middle East by guys who weren’t exactly using latex gloves and numbered evidence bags.

In 2015, Judge Spath began secret negotiations with the Justice Department to become an immigration judge — a fact which he neglected to mention to the Al-Nashiri lawyers, despite the fact that then-Attorney General Jeff Sessions shared supervisory authority over the military commission. Sessions also played a role in the selection of immigration judges, and was no doubt impressed by Judge Spath’s application describing himself as having been “handpicked” to oversee “the military commissions proceedings for the alleged ‘Cole bombing’ mastermind … at Guantanamo Bay.”

And so the case — and Judge Spath’s application — proceeded for two more years without major incident until the summer of 2017, when Al-Nashiri’s lawyers discovered a hidden microphone disguised to look like a smoke detector in their client meeting space. The government pinky swore that it was just a “legacy” device and they would never violate attorney client privilege for the guy they’d locked naked in a little box and threatened to shoot, but Al-Nashiri’s counsel remained doggedly unconvinced.

After the court barred the attorneys from even telling their client that the meeting room might be bugged, his lawyers insisted it was their ethical obligation to withdraw from the case. And despite Judge Spath’s threats, orders, and even holding the supervising attorney in contempt and confining him to quarters, Al-Nashiri’s three civilian lawyers refused to return to courtroom. This left only Naval Lieutenant Alaric Piette, a JAG who had been in practice for just five years and was utterly unqualified to stand as learned counsel in a death penalty case. Spath overruled Piette’s objection, however, and the case continued with Al-Nashiri’s only remaining lawyer refusing to substantively participate in the evidentiary hearings.

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Was Judge Spath’s conduct influenced by his pending job application with the Justice Department? We’ll never know. But we do know that in February of 2018, the Pentagon abruptly fired the military commission supervisor at Gitmo, reportedly because he had entered into negotiations with some of the 911 conspirators to take the death penalty off the table. And we know that after he refused to slow down a capital case against the alleged bomber of the U.S.S. Cole, Judge Spath did get his golden ticket off the island. A ticket which he immediately tucked into his pocket, announcing just days after Rishikoff’s defenestration that he was retiring and putting the Al-Nashiri case on abatement because of the defense counsel’s recalcitrance.

Meanwhile Carol Rosenberg, doyenne of GITMO journalists, had discovered  evidence of Spath’s budding new career in documents she’d FOIA-ed from the Justice Department. But when Al-Nashiri’s lawyers requested discovery on Spath’s potential bias, the government refused, calling the newspaper story “unsubstantiated assertions.” In fact, the same day that the Court of Military Commission Review found that there was absolutely no justification to question Judge Spath’s impartiality, he was sworn in for his new gig at DOJ. Timing is everything!

But wait, there’s more! Because in November, the CMCR sent the case back to Judge Spath’s replacement, Colonel Shelly Schools, to determine if her predecessor should have been disqualified for bias. Except Judge Schools had a secret of her own.

Can you guess ….

That’s right, Judge Schools was also negotiating with DOJ to become an immigration judge.

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Which is how Judge Tatel came to undo at least 460 of Judge Spath’s orders, saying:

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.

So maybe we can cut the BS and acknowledge after 18 years that passing laws to bar alleged terrorists from the U.S. court system so they’re forever locked up on extra-judicial island is pretty much a failure.

OR, we could “load it up with some bad dudes” like the president wants. Because when you’re winning this much, even though you might be getting tired of winning, you have to keep doing what you’re doing so you can win a whole lot more, okay?

DAYENU!

Court Rejects 2 Years of Judge’s Decisions in Cole Tribunal [New York Times]
Al-Nashiri III: A No Good, Very Bad Day for U.S. Military Commissions [Just Security]
In re Al-Nashiri III

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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