DC Circuit Vacates Years of Guantanamo Court Orders

By William Vogeler, Esq. on April 19, 2019

What was Colonel Vance Spath thinking as he presided over the case of an alleged al Qaeda operative?

Spath was serving as a military judge in Guantanamo Bay, where Abd Al-Rahim Hussein Muhammed Al-Nashiri was facing capital charges. The case dragged on for four years. But In re: Abd Al-Rahim Hussein Al-Nashir came back to haunt Spath, who retired last year. He was thinking about a conflict of interest that he should have disclosed from the beginning.

Conflict of Interest

Spath had applied for a job as an immigration judge with the Department of Justice shortly after Al-Nashiri's case started. He did not disclose that to the defendant or his lawyers. After receiving an offer from the government, and before retiring from the military, Spath got into a dispute with the defense attorneys. Three out of four wanted out of the case.

The DC Circuit Court of Appeals said Spath had an "appearance of partiality" that disqualified him because DOJ employees had worked on the case against Al-Nashiri. The appeals court vacated all orders issued by Spath from the date he applied for the job. The Washington Post called it setback for Guantanamo.

Spath, who once ordered a Marine general to confinement for contempt of court, called it a career.

Contempt of Court

Spath retired from the Air Force late last year, having served as chief of the judiciary in Guantanamo since 2014. He had been presiding over the USS Cole case. At the time, he was in the spotlight for sending Marine Brig. Gen. John Baker to the brig for 21 days. Spath punished the general for releasing three defense attorneys in the case. A federal court overturned that decision, and the DC Circuit granted the defense request to vacate all Spath's orders in the case for the last two years. Al-Nashiri's lawyers also asked for permission to warn the defendant about potential monitoring at Guantanamo, but the court denied their motion.

Al-Nashiri is accused of orchestrating the bombing of the USS Cole on Oct. 12, 2000. Seventeen American soldiers were killed and 39 were wounded in the attack.

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