Guantanamo military court struck with another legal setback

Legal

The courts were created after the terrorist attacks of September 11, 2001 to prosecute detainees at the military prison.

A federal appeals court struck a harsh blow to beleaguered military courts in Guantanamo Bay on Tuesday, rejecting three years of rulings in a terrorism case after ruling that the judge overseeing the proceedings did not appear impartial.

The DC Circuit Court of Appeals said that Air Force Colonel Vance Spath "created an" intolerable cloud of bias "against the military commission by holding a position in the department. of Justice while simultaneously presiding over the trial against Abd Al-Rahim. Al-Nashiri, the alleged brain of the USS Cole bombing in Yemen in 2000.

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The unanimous opinion of a panel of three judges also accused Spath of "lack of candor" for hiding the change in his job by failing to reveal it when he terminated the proceedings. July 2018.

Judge David Tatel stated that, given the circumstances, Al-Nashiri had "a clear and indisputable right to a remedy".

The case is handled by the Guantanamo Bay military commissions, created after the September 11, 2001 terrorist attacks, to prosecute detainees at the military prison.

The process – intended to bypass the civil courts to not fear that they offer too many rights to the accused and compromises classified information – has run into numerous difficulties, including repeated allegations of Breach of the confidentiality of defense communications.

These problems led to a tangle of lawsuits that resulted in prolonged delays, not only in Cole but in another case against men accused of participating in the 9/11 attacks.

Tuesday's decision is another setback for the court system. The order included an extraordinary reprimand by military judges, prosecutors and other officials for failing to ensure that the commission process remains free of bias and appearance of bias.

"Criminal justice is a shared responsibility. Yet in this case, with the exception of Al-Nashiri's defense lawyer, all the elements of the military commission system – from the prosecution team to the justice department, to the [Court of Military Commission Review] to the judge himself – did not assume this responsibility, "wrote Tatel." And we can not dismiss Spath's lapse as a single aberration, because Al-Nashiri is not the first challenge merit taken into account by our court in proceedings before a military commission. "

Tatel added that the need for an independent judge in the Al-Nashiri case was further strengthened by the fact that the government was demanding the death penalty for the death of 17 soldiers during the Cole attack.

"In any proceedings, the need for an impartial judge can only be greater than a judge who could lead to death," wrote Tatel in an opinion shared by judges Judith Rogers and Thomas Griffith.

The decision will quash approximately 460 written orders issued by Spath, as well as an untold number of oral decisions, including rulings he made against defense lawyers who have attempted to withdraw from the case for ethical reasons.

The ruling means that any trial for Nashiri, an alleged al-Qaida operative, will probably occur more than two decades after his alleged crime.

Tatel said the court had acknowledged that the decision would cause further delays in a process already criticized for its icy pace, but added that maintaining the legitimacy of the process should take precedence over speed.

"The public's interest in effective justice is surely no greater than its interest in impartial justice," Tatel wrote. "Any institution that has the power of the government to deny life and freedom must do so equitably, because the ultimate goal of the public is not to guarantee a conviction, but to achieve a fair result."

The appeals court also noted that the military had initially replaced Spath with another military judge, Col. Shelly Schools of the Air Force. However, earlier this year, government lawyers said her retirement was imminent because she had also accepted a position in the expanding ranks of the Department of Justice, composed of immigration judges.

The Ministry of Justice declined to comment, citing the pending litigation. The Department of Defense did not have an immediate comment on the decision.

A Nashiri attorney, Michael Paradis, said the decision of this body was an indictment of the military commission system.

"It's a shame she must have come to that," Paradis told POLITICO. "These are basic rules of judicial ethics. They have been raped for years. They were raped in secret. And no one in the military commission system … did anything, even after being unearthed. "

"Things like that would never have happened in federal court, not to mention the infection for years," said Paradis.