Terror Rulings Vacated Over Risk of Bias From Military Judge

Attorney General Jeff Sessions greets new immigration judges after outlining Trump administration policies in Falls Church, Va., on Sept. 10, 2018. To Sessions’ right is former Guantanamo war court judge Vance Spath. (J. Scott Applewhite, Associated Press)

WASHINGTON (CN) – Unraveling two years of rulings in the prosecution of a suspected al-Qaida mastermind, the D.C. Circuit ruled Tuesday that the military judge disqualified himself by secretly lobbying the White House for a federal judgeship.

“It is beyond question that judges may not adjudicate cases involving their prospective employers,” says the 31-page opinion, written for a unanimous panel by U.S. Circuit Judge David Tatel.

The controversy first emerged when defense attorneys for Abd al-Rahim al-Nashiri learned in 2017 that Air Force Col. Vance Spath had accepted a job as an immigration judge. 

At that time, then-Attorney General Jeff Sessions was pushing to wrap up Nashiri’s case, and Spath failed to disclose his job offer to Nashiri’s defense team.

That the attorney general participated in Nashiri’s case “from start to finish” is undisputed, said Tatel, noting that the attorney general is in charge of appointing immigration judges while also playing a general role in the military commissions.

“He has consulted on commission trial procedures, he has loaned out one of his lawyers, and he will play a role in defending any conviction on appeal,” the opinion says. 

Vacating all orders Spath issued after he applied for the immigration court posting on Nov. 19, 2015, Tatel said Spath’s application for the judgeship “cast an intolerable cloud of partiality over his subsequent judicial conduct.”

The ruling emphasizes that it would be difficult for anyone in Spath’s position to strike the balance of neutral disinterest in al-Nashiri’s case while also conveying significant personal interest in his job application.

“That is precisely why judges are forbidden from even trying,” Tatel added.

While that alone would disqualify Spath, Tatel said the colonel took it further in his job application by boasting that he was “handpicked” to try Nashiri’s case. Spath also used one of his opinions in the case as a writing sample for his application.

Tatel called it remarkable as well that Spath abated proceedings indefinitely to ponder retirement less than 24 hours after the Justice Department gave him a start date.

“Given this lack of candor, a reasonable observer might wonder whether the judge had done something worth concealing,” the opinion says.

Accused of plotting the 2000 bombing of the USS Cole while it refueled in a Yemeni port, leaving 17 sailors dead, al-Nashiri was transferred to Guantanamo Bay in 2006 after being tortured in CIA custody.

As with all proceedings at the Cuban prison camp, al-Nashiri’s case has been bogged down in pretrial motions for years. He faces the death penalty if convicted.

Tatel noted the gravity of that possible outcome in the opinion: “In no proceeding is the need for an impartial judge more acute than one that may end in death.”

Nashiri’s attorney, Michel Paradis, called the entire case a “disgrace.”

“These are basic rules of judicial ethics,” Paradis said in an email. “They were violated for years. They were violated in secret. And no one within the military commission system, not any of the military commission judges, not the prosecution, not the judges of the Court of Military Commission Review, did anything even after it all came to light.” 

Tatel echoed this sentiment in Tuesday’s ruling, which says every aspect of the military commission system failed to live up to the shared responsibility of criminal justice.

And al-Nashiri’s case is not a one-off. Tatel noted that “al-Nashiri’s is not the first meritorious request for recusal that our court has considered with respect to military commission proceedings.”

Attorney Paradis chalked that up to problems with the military commissions system itself, noting that such issues would not linger unresolved for years in a federal court.

“I would say it is not fair to anyone involved to have a so-called judicial system that is this incapable of getting the easy questions right,” he said.

That goes for the victims of the USS Cole attack, too. 

“They have been denied their day in court for almost two decades and are left to continue to wonder about the truth about what happened,” he said. “It is a terrible shame.”

Tuesday’s panel stopped short of saying the Defense and Justice Departments should change how they assign and hire judges. It does stress, however, that military judges must always appear impartial.

“Any institution that wields the government’s power to deny life and liberty must do so fairly, as the public’s ultimate objective is not in securing a conviction but in achieving a just outcome,” Tatel wrote.

The Department of Justice declined to comment on Tuesday’s opinion.

In a related matter, the same panel said it is now a moot point that two members of Nashiri’s defense team sought to withdraw from the case after they discovered hidden microphones in one of their meeting rooms.

The relief granted in Nashiri’s case will give the attorneys “all the relief” they sought, the opinion says.

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