The US Court of Appeals for the District of Columbia Circuit ruled Tuesday that more than two years of decisions by Colonel Vance Spath, a military tribunal judge who formerly oversaw the case of Abd Al-Rahim Hussein Muhammed Al-Nashiri, should be discarded because he failed to disclose his application to be an Immigration Judge in the Department of Justice.
Al-Nashiri stands accused of orchestrating the October 12, 2000, USS Cole bombing in the port of Aden, Yemen. Pursuant to the Military Commissions Act of 2009, Al-Nashiri, a Saudi national, was granted a military commission overseen by Spath. After about a year of overseeing the Al-Nashiri proceedings, Spath applied for, and eventually obtained, an Immigration Judge position in the Department of Justice. Spath failed to notify anyone involved with the proceedings of his job search.
The court held that Spath’s job application created a conflict of interest because Department of Justice employees worked on the prosecution of Al-Nashiri.
We do not take lightly the crimes that Al-Nashiri stands accused of committing. To the contrary, the seriousness of those alleged offenses and the gravity of the penalty they may carry make the need for an unimpeachable adjudicator all the more important. We therefore grant Al-Nashiri’s petition for a writ of mandamus and vacate all orders issued by Judge Spath on or after November 19, 2015, and we further vacate all decisions issued by the [United States Court of Military Commission Review].
Spath’s decisions included denying a defense counsel motion requesting permission to warn Al-Nashiri of potential monitoring at Guantanamo Bay, denying a motion to compel discovery about the potential monitoring, and denying a motion to abate when Al-Nashiri’s civilian lawyers sought to remove themselves because of the ethical considerations surrounding the potential monitoring.