WASHINGTON (CN) - Fighting to set aside years of Guantanamo Bay court proceedings, a lawyer for the accused mastermind of the USS Cole bombing told the D.C. Circuit on Tuesday that the military judge breached the code of ethics.
The dispute over Air Force Col. Vance Spath was one of two that the court tackled this morning on appeal by Saudi-born Abd al-Rahim al-Nashiri.
Because Spath applied to the Justice Department for an immigration judgeship while presiding over Nashiri's case from 2014 to 2018, defense attorney Michel Paradis said the D.C. Circuit must toss Spath’s rulings in the case.
Contending that the judge’s conduct raised questions of potential bias that "shock the conscience,” Paradis called this especially concerning as Spath got the job while at a time when the DOJ under Attorney General Jeff Sessions was focused on wrapping up Nashiri's case.
Even the appearance that Spath's job aspirations interfered in Nashiri's case seemed to trouble Tuesday’s panel. In one exchange with Justice Department attorney Joseph Palmer, U.S. Circuit Judge David Tatel noted that any of his colleagues would surely recuse themselves if a job offer from the executive branch arose.
Tatel pressed Palmer repeatedly this morning to explain how a "reasonable observer" of the case could be satisfied of Spath's independence.
"I just don't see how that passes the smell test," said Tatel, a Clinton appointee.
Accused of plotting the 2000 bombing of the USS Cole as it refueled in a Yemeni port, leaving 17 sailors dead, Nashiri was transferred to Guantanamo Bay in 2006 after suffering torture and other forms of torture in CIA custody.
Like all proceedings at the Cuban prison camp, Nashiri's case has proceeded in fits and starts. While the government dropped its charges against Nashiri in 2009, it reinstated them two years later. Nashiri faces the death penalty if convicted.
But Paradis noted at oral arguments today that Spath kept his job search a secret during proceedings, even while using an opinion from the Nashiri case as a writing sample for his application.
Paradis said Nashiri's team first heard rumor of the news at a holiday party and confirmed it when a newspaper published a picture of Spath at a reception for newly sworn-in immigration judges.
But for this “serendipity," Paradis said, Nashiri's team might not have learned of Spath's potential conflict of interest when it did.
Questioning the lawyer’s push to vacate all proceedings in the Nashiri case, however, Tuesday’s appellate panel emphasized that the only allegation here is that Spath was compromised for only a short stretch of the decade-long case.
Paradis acknowledged this concern, but noted vacating all of Spath's orders would only set aside 79 hearings, which he equated to three or four months work in a normal case not hampered by the logistical troubles of the Guantanamo proceedings.
The Justice Department’s Palmer pointed out meanwhile that military judges are employed in the Department of Defense, not the Justice Department, making Spath's lobbying for a job less of a conflict.
Contesting the remedy sought by Nashiri as too extreme, Palmer urged the court to send the case back to the trial level, where the new judge handling the case can weigh the issues, examine the motions on which Spath ruled, develop a record and decide how to proceed.
That suggestion carries its own issues, however, as Spath’s successor, Col. Shelley Schools, has also accepted a job as an immigration judge. Palmer could not say for certain whether Schools or her replacement would decide the issue.
The D.C. Circuit also heard arguments today over the request by two members of Nashiri's defense team who sought to withdraw from the case after they discovered hidden microphones in one of their meeting rooms.
For its part, the government insists the microphones did not work and were left over from when the room was used for a different purpose, but lawyers Mary Spears and Rosa Eliades said they sought ethical guidance after Spath refused to hold an evidentiary hearing and forbade them from discussing the issue with Nashiri.
Spath later refused to recognize a decision by Brig. Gen. John Baker, who oversees the defense team, to let Spears and Eliades withdraw.
Though the Court of Military Commission Review would later find that military judges must approve attorneys' requests to withdraw, this came after Spath ordered Baker confined to his quarters as part of the dispute.
Matthew Hellman, an attorney for Spears and Eliades with the firm Jenner and Block, told the D.C. Circuit today that the military court's rules clearly vest the power to grant withdrawals with the chief defense counsel, in this case Baker.
"It couldn't be much clearer," Hellman told the judges, pointing out that language about judicial approval that appeared in an earlier version of the rules was omitted in a recent revision.
Justice Department attorney Danielle Tarin argued meanwhile that Hellman’s oversimplification of the issue would open trials up to catastrophic delays.
She said if Baker is the only one who can grant withdrawal requests, he could delay cases by allowing attorneys to back out right before trial begins or before a key witness with a limited window to appear is about to testify.
Tarin also went back and forth with Tatel, parsing the exact language of the court's rule. Because the new rules allow withdrawals for "other good cause shown on the record," Tarin insisted that judges still have an implicit role in withdrawal disputes.
Tatel struggled to see this, however, as he pored over the text of the rules.
"Where is the word judge in little i?" Tatel asked, referencing a section of the military commission rules.
As U.S. Circuit Judge Thomas Griffith wondered what role the court can play here now that Nashiri already has a new defense team, Tatel questioned whether the dispute should be resolved by new judge assigned to Nashiri’s case.
Griffith was appointed to the circuit by President George W. Bush. U.S. Circuit Judge Judith Rogers, a Clinton appointee, was the other judge on the panel Tuesday.
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