All Rulings from Past Four Years Vacated in Guantanamo Death Penalty Case

On April 16, 2018, the U.S. Court of Appeals for the District of Columbia Circuit issued a sweeping decision that overturned years of rulings in the case of Abd Al-Rahim Al-Nashiri, accused of orchestrating the U.S.S. Cole bombing in 2000. Proceedings were instituted against Al-Nashiri in 2011, and three years later, in 2014, Colonel Vance Spath began presiding over the case. In 2017, while still in pre-trial proceedings, the case received significant attention when the team of lawyers defending Al-Nashiri withdrew on ethics grounds. That left the junior-most lawyer, Lieutenant Aleric Piette, to defend Al-Nashiri alone. Lt. Piette had no meaningful capital experience or training, and asserted—consistent with the ABA’s capital defense guidelines and other standards—that he was not qualified to be lead counsel in the case.

What followed was months of argument between Col. Spath and Lt. Piette about whether the proceedings should be halted given the lack of qualified counsel. During this time, Col. Spath also went to great lengths to compel the civilian defenders to return to the case. He continued to allow the government to move forward with its case, including taking depositions and conducting “preadmission of evidence”—consisting of the testimony of over thirty prosecution witnesses. On February 16, 2018, after another unsuccessful attempt to order one of the withdrawn defense attorneys to appear, Col. Spath announced that he was indefinitely halting proceedings. He refused to dismiss the case, however, finding that doing so would “reward defense counsel” for what he perceived to be a strategy designed to disrupt the proceedings. He also announced that he was considering retirement, and while the case was on appeal to the Court of Military Commission Review (CMCR), he filed retirement paperwork. A new judge, Colonel Shelly Schools, eventually took over the case.

Meanwhile, during the summer of 2018, Al-Nashiri’s defense team—which now included a new experienced military defense attorney—learned that Col. Spath had been pursuing employment with the Justice Department as an immigration judge. Responding to requests for discovery on this subject, the government dismissed the idea as based on “unsubstantiated assertions” and said that the defense had provided “no basis to believe that the former presiding military judge has applied for a position with the [Justice Department] or even contacted the [Justice Department] regarding employment.” Yet later that week, Col. Spath was photographed with then-Attorney General Jeff Sessions at a welcome ceremony for new immigration judges, and he was sworn in later that month. A few months later, Col. Schools followed suit and also retired to accept appointment as an immigration judge. In the interim, the CMCR ordered that proceedings resume in the Al-Nashiri case.

Al-Nashiri’s counsel appealed to the D.C. Circuit, which holds jurisdiction over the CMCR, presenting evidence that Col. Spath had spent nearly his entire tenure on the Al-Nashiri case seeking employment from the Justice Department. This fact, they alleged, was known to the prosecution but actively hidden from the defense. They argued that Col. Spath could not act in an impartial manner given that he was seeking employment from one of the parties to the case.

The D.C. Circuit agreed. The court found that even if Col. Spath had no actual bias toward the parties in the case, his actions gave the appearance of partiality, which is not permissible, particularly in a capital case. The court found it particularly notable that Col. Spath received information about his start date as an immigration judge on February 15, 2018, just hours before he ruled from the bench that the Al-Nashiri proceedings should be put on hold indefinitely. The D.C. Circuit was also troubled by his “lack of candor” in making that ruling, where he declared that he would decide “over the next week or two … whether it might be time … to retire.” 

The D.C. Circuit concluded that the only way to remedy the appearance of partiality in the case was to “scrub Spath’s orders from the case at the earliest opportunity” and ordered that all of Col. Spath’s rulings dated after November 2015, when he first applied for the immigration judge position, be vacated.

Although the D.C. Circuit’s opinion was not directly about the conduct of the defense team in withdrawing from the case, the court signaled its singular approval of the lawyers’ actions, in contrast to all others involved in the matter. The court wrote:

Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system—from the prosecution team to the Justice Department to the CMCR to the judge himself—failed to live up to that responsibility.

The court declined to grant additional relief to the lawyers who had sought withdrawal from the case, finding there was no need to specifically set aside the orders that they must continue since those would be vacated along with everything else from the previous four years. Acknowledging the lawyers’ concerns about professional consequences of the past rulings, the court wrote that it “cannot imagine that any state bar association or other professional licensing body . . . would initiate disciplinary proceedings against lawyers based solely on the orders of a judge ethically disqualified from issuing them.”

The decision represents a major setback in the case for those seeking to move it forward, effectively erasing four years’ worth of pretrial litigation. The court acknowledged the burden its decision would place on all involved, but found that “the costs of granting the writ are not intolerably high” given the seriousness of the case.

“Surely,” the court reasoned, “the public’s interest in efficient justice is no greater than its interest in impartial justice. Any institution that wields the government’s power to deny life and liberty must do so fairly, as the public’s ultimate objective is not in securing a conviction but in achieving a just outcome.”

Prosecutors have not yet commented on whether they will seek review of the case from the full D.C. Circuit or review in the U.S. Supreme Court.

For continuing in-depth coverage of the Al-Nashiri case and other proceedings at Guantanamo Bay, follow ABA-award winning journalist Carol Rosenberg on twitter @carolrosenberg.