In a setback for Guantanamo, the court cancels years of decisions in the USS Cole case

A federal court struck a heavy blow to Guantanamo Bay's military commissions Tuesday, ending more than three years of proceedings in the so-called brain of the bombing case against the USS Cole in 2000 .

In a unanimous decision, a panel of three judges ruled that former military judge Vance Spath "created an appearance of disqualifying bias" by holding an immigration judge position while overseeing the case.

The judges also overturned an order by Spath that two defense lawyers for the accused, Abd al-Rahim al-Nashiri, return to trial against their will.

The decision is the last task of the troubled commissions created following the attacks of September 11, 2001 to try prisoners detained at Guantanamo Bay, Cuba. Out of a large population of inmates, only 40 remain. Nearly two decades after the attacks, the start of the 9/11 criminal trial is still far behind due to legal conflicts and seemingly endless procedural delays.

The decision of the US Court of Appeals for the District Circuit of Columbia also suggests that federal courts can no longer be so deferential to the war tribunals and the larger system of Guantanamo as they have been in the past, because commission proceedings have been going on for years. and about two dozen other inmates languish without the suggestion of a lawsuit.

Nashiri, a Saudi national in his fifties, faces the death penalty for his alleged orchestration of a series of plots to bomb Western ships, including the Cole attack, which killed 17 Americans. After his capture, Nashiri was subjected to numerous torture under the custody of the CIA.

"Many years ago, when Abd al-Rahim first learned that he was delivered to Americans, he was really happy because he thought the United States was a country of laws and rights and that it would at least be treated with fairness, "says Navy Lieutenant Alaric Piette, a member of the Nashiri Defense team. "Finally, after 16 years, with this decision, it really happened. Which means that it will mean a lot to him.

Spath, who recently retired as a colonel in the Air Force, suspended the Nashiri case in early 2018 following a dispute with defense lawyers who resigned after finding a microphone in a room reserved for lawyer-client discussions. The judge's order that the lawyers remain involved triggered a complex controversy involving several courts and led to the house arrest of a brigadier general to oversee the Commission's defense teams.

One year after his involvement in the case, Spath quietly applied to the Department of Justice for an immigration judge position. These judges are appointed by the Attorney General.

The judges of the Supreme Court of Canada circuit, in a harsh reprimand, reacted this week by canceling the decisions rendered by the commission and at least part of its appeal body, from the time Spath submitted his candidacy at the post office in November 2015.

"Even if such a fundamental principle of our system of laws should be taken for granted, we nevertheless feel compelled to reformulate it clearly here: criminal justice is a shared responsibility," Judge David Tatel wrote in his decision. "Yet in this case, with the exception of Al-Nashiri's defense lawyer, all elements of the military commission system – from the prosecution team to the justice department to the CMCR . [U.S. Court of Military Commission Review] to the judge himself – failed to meet this responsibility. "

"This is clear: every time military judges are appointed, rehired and reviewed, they must always maintain the appearance of impartiality," Tatel wrote.

The CMCR is the Guantanamo appeal body. Judges Judith Rogers and Thomas Griffith joined Tatel.

Michael Paradis, a lawyer who represented Nashiri in the circuit case, said the notice revealed the judges' frustration "that the system is jumping on such fundamental roles and broken accordingly. Everything has become so chaotic. "

In a striking glimpse of the court's thinking, the decision seemed to suggest that the judges considered what Tatel described as "a powerful means of completely dissolving the current military commission" – that is, they were looking into the possibility of cancel the entire Nashiri case to date. . Such a move would bring an even bigger blow to the architecture of military justice in the post-9/11 era.

The government could appeal the decision. A spokeswoman for the Ministry of Justice declined to comment on the ongoing litigation.

Spath's successor to the military court also left to become an immigration judge.

Devlin Barrett, Maria Sacchetti and Nick Miroff contributed to this report.