Court Throws Out Years of Rulings from Military Judge in USS Cole Trial

(AP Photo/Andres Leighton, File)

A federal appeals court tossed out years of rulings from a case being tried by a military tribunal at Guantanamo involving the bombing of the USS Cole.

The U.S. Court of Appeals for the D.C. Circuit ruled that orders issued by the military judge in the case, Air Force Col. Vance Spath, gave the “disqualifying appearance of partiality.”


Judge Spath apparently applied for a position as an immigration court judge at the same time he was presiding over the trial of suspected al Qaeda member Abd al-Rahim al-Nashiri, the alleged mastermind of the USS Cole bombing in the Gulf of Aden in 2000. The appeals court took a dim view of Spath’s ambitions.

Washington Examiner:

“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,” Judge David Tatel said, writing the unanimous opinion for the appeals court panel.

In making this ruling, Tatel emphasized “the government seeks to impose the ultimate penalty against Al-Nashiri.”

It’s been 20 years since 17 sailors were killed and 39 injured in that terrorist attack. That al-Nashiri still draws breath is a travesty of justice. And now this — a stupid military judge who didn’t think angling for another job with the government would taint his decisions in the eyes of an appeals court.

Even more stupidly, Spath bragged about his role in the al-Nashiri trial.

Spath has presided over the al-Nashiri case since July 2014, and applied for a position with DOJ’s Executive Office for Immigration Review on Nov. 19, 2015. Spath never revealed that fact to defense, even though his actions from that time onward could be seen as part of a job interview. The appeals court panel pointed out that Spath made his role as a judge in the al-Nashiri proceedings a significant part of his job application, with Spath telling the DOJ he was “handpicked by the top lawyer of the Air Force to be the trial judge” for “the military commissions proceedings for the alleged ‘Cole bombing’ mastermind.” Spath’s job application was only revealed through a Freedom of Information Act request.


The entire proceedings were a fiasco from beginning to end with Spath getting involved in a heated dispute with al-Nashiri’s defense attorneys:

As Tatel put it, “the two subplots of Spath’s story” — the job application and the battle with the defense attorneys — “reached their denouement the week of February 12, 2018.” On Monday of that week, Spath ordered Eliades and Spears to appear by videoconference the next day. On Tuesday, Eliades and Spears said they would not, and so Spath responded by ordering the draft of writs of attachment to have them both arrested. On Thursday, he said he would “think about this overnight.” But, as Tatel put it, “he was mulling a different important decision on Thursday night”, when an human resources specialist in the Executive Office for Immigration Review gave Spath his start date, saying he could begin with them on July 8, 2018. He said he would get back that weekend and would call on Tuesday.

Spath “indefinitely” abated the military commission proceedings against al-Nashiri the very next morning.

Does this guy sound like he’s temperamentally suited to be a judge in any venue?

I have been supportive of the military tribunals as a way to try terrorists, but no longer. This is absurd. It’s been 18 years since the attacks of 9/11 and the plot’s mastermind, Khalid Sheikh Mohammed, is no closer to being brought to justice. It may be time to close the prison at Guantanamo Bay and bring the “worst of the worst” terrorists to the U.S. to stand trial in civilian courts.


It’s not an optimum solution to be sure. But KSM will be an old man who will probably die in his bed by the time the tribunals get around to trying him. The same goes for al-Nashiri, whose trial shows why, for whatever reason, the military is incapable of meting out the justice that these terrorists so richly deserve.


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