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This article was produced in partnership with the Pulitzer Center on Crisis Reporting.
GUANTÁNAMO BAY, Cuba – A federal court of appeal on Tuesday overturned more than two years of the decision of a military judge in the case of the man accused of having prepared the bombing the Cole bomber, believing that the lawyer had mistakenly concealed his search for immigration. judge the work while sitting on the case of war crimes.
The decision of the US Court of Appeals for the District Circuit of Columbia was a major setback in the oldest case of death penalty at Guantánamo Bay, and a new twist in a tortuous and cumbersome case that symbolizes now the difficulties encountered by the government in its pursuit. prosecution of detainees through the military court system.
Abd al-Rahim al-Nashiri, 54, detained in the United States since 2002, has been represented by defense commission lawyers since 2008 and was formally charged in 2011. Mr. al-Nashiri, a Saudi, is charged with Be the architect of the suicide bombing committed by Al Qaeda against the destroyer of the Cole Navy off Yemen on October 12, 2000. Seventeen American sailors have died and dozens of others have been injured.
But more than seven years after Mr. al-Nashiri's indictment, the case is still undergoing a preliminary hearing to determine the law and the evidence that would apply in a sentencing trial. capital by the military commission. This decision means that a new military judge will have to reconsider defense appeals, the evidence that prosecutors must provide to al-Nashiri's lawyers, and fundamental constitutional questions about the legality of the military commission system. .
The Court of Appeals wondered whether retired Air Force Judge Colonel Vance Spath was wrong not to reveal that he had applied for and obtained a position in the Immigration Court. within the Department of Justice. , which was being pursued jointly by lawyers from the Department of Justice and Defense.
The three-judge panel found that he had been and quashed all of Colonel Spath's decisions from November 2015 to February 2018, when the judge stayed the case pending the decision of the superior court. His job offer at the Department of Justice was still secret at the time.
Judge David Tatel wrote in the Court of Appeal case 31-page opinion that the court has recognized "the burden" that the decision "will impose on the government, the public and al-Nashiri itself".
"Despite these costs, however, we can not allow an appearance of bias to infect a justice system that requires the most scrupulous conduct of its arbitrators," said Judge Tatel.
Ron Flesvig, a spokesman for the military commissions, said on Tuesday that prosecutors did not want to know if they were going to ask the court of appeal to hear about the case or to challenge the court's decision. the Supreme Court. Developments likely to delay further trial with death sentence. Colonel Spath did not respond to a message left in search of a comment at his immigration court office in Arlington, Virginia.
Captain Brian Mizer, a defense lawyer for Mr. al-Nashiri, said that, given the latest developments, it would be almost impossible to predict when the case will be judged.
"I do not want to risk guessing," said Captain Mizer. "Eleven years of litigation to get to where we are supposed to suggest that Mr. al-Nashiri's defense team could be in high school right now. Which is a tragedy for everyone involved. "
Chief Navy retired Chief Joe Pelly said he was "rather shocked" by the decision. He added that he was particularly disappointed with "the parents of the children who were killed," a reference to the young sailors who were killed in the bombing that hit the galley ship for enlisted sailors.
"I think we, the Cole survivors and the Gold Star family members, have just been a pawn in this whole process," he said. "But I hope our time will come and we can move forward in this case."
Captain Mizer, a Navy Reservist, was recalled last year at the request of Colonel Spath. All Mr. al-Nashiri's civil lawyers left the case in October 2017 as part of an ethics litigation with the judge.
His civilian lawyers had found a microphone hidden in the wall of their US Navy base prison meeting room, but Colonel Spath had forbidden them to investigate his purpose or talk to him about it. his client, which would constitute a potential breach of professional secrecy. has been classified. Prosecutors finally revealed the discovery in a court record that described the microphone as a "traditional" listening device and said no one had listened to the team.
The panel of three judges blamed Colonel Spath, prosecutors and a Pentagon Appeals Committee called the United States Military Commissions Court. "Criminal justice is a shared responsibility," the jury wrote, adding that in this case, only the defense of Mr. al-Nashiri had endorsed it.
First, the judge failed to disclose his job search. Subsequently, prosecutors rejected a request for information from al-Nashiri's lawyers regarding Colonel Spath's quest for civilian employment before retirement, and the Pentagon panel agreed that defense counsel were not entitled to it.
This information has emerged through a Colonel Spath's immigration court application and supporting documents filed by McClatchy News Agency. Defense lawyers have appended it to their appeal.
The court found "particularly disturbing" that Colonel Spath "hastily" returned most of his classified decisions in the national security case after Jeff Sessions, then Attorney General, agreed to 39 to be appointed Immigration Judge in March 2017.
In military commissions, prosecutors may submit classified information directly to the judge and obtain permission to use a substitute for original evidence, citing the need to protect national security.
To cancel these secret substitutions, the Court of Appeal has reversed.
Once on the right track, a new judge will have to reconsider Colonel Spath's invalidated decisions and reconsider a charge for the prior admission of hundreds of F.B.I. agents identified on the wreck of the ship in Aden, Yemen, as well as several refuges in Aden. The hearing showed that in both cases, the sailors of the heavily damaged destroyer and the Yemeni police or intelligence agents knew about it first.
A closed-door statement by Colonel Spath was also dropped in Guantánamo Bay by an avowed Qaeda terrorist. Ahmed Muhammed Haza al-Darbi testified against Mr. al-Nashiri before being repatriated in May to serve a prison sentence in Saudi Arabia, his home country.
It was unclear to what extent the effects of the decision in the Cole case would be of considerable significance.
But a defense lawyer in the September 11th case, James Connell, said on Tuesday that he would renew his opposition to the trial judge of this case, Col. Keith Parrella of the Marines, because Colonel had a fellowship in 2014-15. Prosecutor on loan to the Counter Terrorism Section of the National Security Division of the Department of Justice.
They argued that the Colonel's former role presented a particular ethical conflict in that four of the nine 9/11 prosecutors worked for the same unit.
Government lawyers defending Colonel Spath's decisions had argued that the Executive Office of Immigration Oversight was a very distant division of the Department of Justice; the Colonel was not required to disclose his job search.
The Appeal Board concluded, however, that "the Attorney General was a participant in the al-Nashiri trial from beginning to end: he consulted on the trial procedures in committee, he lent one of his lawyers and he will play a defense role conviction on appeal. "
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