Gitmo overseer exerted unlawful influence on tribunals, military judge rules

Reuters / Mark Wilson

Reuters / Mark Wilson


9/11 tragedy, Global terrorism


Air Force, Al-Qaeda, Army, Court, Cuba, Guantanamo, Human rights, Law, Military, Navy, Politics, Terrorism, USA

A military judge attempted to speed up the Guantanamo Bay war crimes tribunals by ordering the justices overseeing them to move to the US naval base in Cuba. Now one of those judges has ruled that the since-rescinded order was unlawful influence.

Other than the defendants detained at Gitmo, the vast majority of
participants in the tribunals commute from the US to the naval
base 90 miles to the south for hearings. In January, retired
Marine Corps Maj. Gen. Vaughn Ary, who is overseeing the entire
war court, asked the Pentagon to create a rule change that forced
the military judges in charge of the three main trials to
relocate to the island.

Deputy Secretary of Defense Robert Work approved the order. On
Friday, he also rescinded the rule change, after judge Army Col.
James Pohl, put the oft-delayed 9/11 trial on hold over the
policy. The rule change would have also stripped the military
judges in question of their other duties, including presiding
over US service members’ court martials in the United States.

Retired Marine Corps Maj. Gen. Vaughn Ary issued the relocation order for military judges (Department of Defense).

On Monday, Air Force Col. Vance Spath, the judge presiding over
the trial for Abd al-Rahim al-Nashiri, ordered the Pentagon to
replace Ary and his staff as convening authority for the US
Office of Military Commissions because Ary’s relocation rule
appeared to be unlawful command influence over the trial.

“Any objective observer would wonder if this is a punitive
measure taken against trial judges,”
Spath wrote in his
ruling. “They would easily wonder if decisions were made in
the interest of speed rather than a just, fair outcome.”

Spath didn’t halt this week’s pretrial hearing for al-Nashiri, a
Saudi national charged with orchestrating the 2,000 bombing of
the USS Cole in Yemen that killed 17 sailors, but said he would
hear arguments only on procedural, rather than evidentiary,
issues until Ary is replaced, the Associated Press reported.

The Air Force colonel, who is also chief of the Air Force
judiciary, heard pretrial arguments from al-Nashiri’s lawyers
last week on whether to dismiss the case for unlawful influence
because of the order.

Along with the relocation order, the defense pointed to emails
and other communications from military tribunal officials that
they wanted the case to move more quickly, according to the Gitmo
Observer. They argued that only the judge overseeing the case
controls the pace of the trial, and that it is “unlawful
for a non-judicial official to seek to
interfere with a judge’s command of his courtroom.

Spath agreed with their argument, but refused to dismiss the
trial itself, deeming it “not appropriate” in this

“Mr. Ary, although well intentioned, was concerned with
influencing the process”
to speed up the pace of
litigations, he wrote. “I can’t stress enough … how improper
it is for someone to impact the pace of the judiciary.”

“Mr. Ary and his legal advisers are disqualified from taking
any future action in this case,”
he concluded.

Air Force Col. Vance Spath ordered the Pentagon to replace Ary and his staff due to unlawful influence (Department of Defense)

Ary defended his recommendation and said he had not consulted
with the Judge Advocate General he oversees before issuing the
rule change. Prosecutors had backed Work’s order to speed up the
trials, Reuters reported.

“The government is studying the judge’s ruling and, if
necessary, will make any additional comments through appropriate
court filings,”
spokesman for the Office of Military
Commissions, Army Lt. Col. Myles Caggins, said.

There was no immediate reaction from Work, according to AP.

Spath also announced he would shorten an upcoming pretrial
hearing by half, from two weeks to one to demonstrate “this
detailed trial judge feels no pressure to accelerate the pace of
this litigation.”

However, the Air Force judge bristled at the idea that the
pretrial hearings could be accelerated beyond that, Stripes

“This is a complicated international terrorism case under a
relatively new statutory scheme,”
Spath said, “with
unprecedented amounts of classified evidence.”

Retired Army Col. Mark Toole, Army Reserves Lt. Col. Alyssa
Adams, Navy Reserve Cmdr. Raghav Kotval and Army Lt. Matthew Rich
were the other members of the Office of Military Commissions whom
Spath disqualified.

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