Al-Nashiri Judge Orders to Replace Guantanamo Military Commission Convening Authority and Staff

Yesterday, Air Force Colonel Vance Spath, the judge presiding over the Guantanamo military commission hearings for alleged USS Cole bomber Abd al-Rahim al-Nashiri, ordered to remove the convening authority, Vaughn Ary, and several of his staff from the case. Judge Spath ruled that a new defense department policy that Ary recommended could appear to be an attempt to unlawfully influence commission judges. This is merely the latest problem to mar the U.S. government’s effort to prosecute terrorist suspects at Gitmo.

The hearing hinged on a controversial January Department of Defense order that required all military commission judges to move to Guantanamo Bay and give up all other work. Ary—who, as the convening authority, manages the military commission’s logistics and personnel—recommended this order last December. According to emails and memos from his office, Ary indicated that he wanted to speed up the pace of the commissions.

After the order was issued, al-Nashiri’s defense team filed a motion arguing that it could cause actual or apparent unlawful influence on the judge. Serving in Guantanamo is considered a hardship—by requiring judges to stay for the remainder of their cases, they would end up stuck on the base for several years. This could create the appearance that the trial is unfair, because judges would appear to be under pressure to complete it quickly or to have incentive to move the case along so that they can return home.

Ary’s desire to speed up the trials is, in some ways, reasonable: they have moved glacially. But it’s not Ary’s job to set the pace. This responsibility lies solely with the judge, lest the fairness of the trial be compromised. Ary also made his recommendation without consulting any of the Judge Advocate Generals. The TJAGs, as they are known, are usually the only ones who can dictate military judges’ scope of duty.

In testimony before the commission last Wednesday, Ary insisted that his motivation was simply resourcing the tribunals. He claimed that moving the judges was part of a holistic approach to improve the military commission’s function. But he couldn’t explain exactly how or why this would make any positive difference.

Judge Spath pointed out that even if he were based in Guantanamo, he could hardly decide to hold hearings more often while everyone else—including the defense team and the prosecution—was in Washington. Navy Commander Brian Mizer, one of al-Nashiri’s defense attorneys, quoted Air Force TJAG Lieutenant General Christopher Burne saying that he didn’t want Judge Spath “sitting in Guantanamo, looking at iguanas.” Even Ary had to admit that this was not a good use of judicial time.

Whatever Ary’s intentions, the order achieved little other than further delay and a legal mess. Last Thursday, Judge Pohl, who presides over the 9/11 hearings, ordered his case in abatement until the directive was revoked. The DOD did so less than 24 hours later, but al-Nashiri’s defense team contended that the issue of unlawful influence remained since Ary had made it clear that he wants the trials to move faster.

Judge Spath agreed. Although he denied the defense lawyers’ request to dismiss the case, he ordered to remove Ary and four of his legal assistants from the al-Nashiri case. He was also quick to point out that, in an effort to speed up the case, Ary had instead forced him to waste more than a week hearing a motion on an unnecessary order. Furthermore, to demonstrate that he was not pressured to speed up the case, Spath cancelled half of a two-week hearing scheduled for April, therefore slowing the case’s potential progress. The al-Nashiri case may also be delayed until the defense department can hire a new convening authority.

This problem is one of many to set back the military commissions. These problems aren’t faced by federal courts, which routinely and successfully prosecute terrorism trials and don’t deal with the challenges of a new statutory framework, remotely located judicial and trial teams, and unclear command structures. For example, last week a federal court convicted Khaled al-Fawwaz for his role in the 1998 bombings of U.S. embassies in Kenya and Tanzania.

In the meantime, 122 people remain locked up in Guantanamo, looking at iguanas.