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Thread: U.S. recommends death penalty in USS Cole attack

  1. #21
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    Guantanamo holds Sunday war-court session to hear from prisoner's psychiatrist

    An Army psychiatrist testified Sunday that Guantanamo doctors, with no government account of what the CIA did to the accused USS Cole bomber, offered the captive a range of treatments for his mental health problems, such as antidepressants and exposure therapy.

    The doctor, an Army major who was board-certified in psychiatry in 2012, said the man awaiting a death-penalty trial didn't agree to any kind of therapy and since participation was essential, it never happened.

    Abd al Rahim al Nashiri, 49, was held for four years by the CIA and, according to unclassified abuse reports, was interrogated with a waterboard and power drill and subjected to a mock execution. But the doctor testified, anonymously and by video-link from Fort Bliss, Texas, that medical records he consulted provided no CIA detention history on any of his patients.

    "I have just assumed that they probably went through some form of hell at some point in their life," said the doctor, who wore the battle-dress uniform of an Army major and was called Doctor 97 in court.

    Last year, a court-appointed U.S. military medical board was authorized to see information about Nashiri's 2002-06 secret CIA detention and diagnosed him as suffering post-traumatic stress disorder and major depression. Last week, an expert on treating torture survivors, who was likewise given top-secret access to learn about Nashiri's CIA treatment, diagnosed Nashiri as a victim of " physical, psychological and sexual torture."

    Sunday, Doctor 97 said he didn't know what happened to Nashiri before Guantanamo beyond "suspicions," but disagreed with the expert. The doctor recently switched Nashiri's primary diagnosis to narcissistic personality disorder, finding that more apt than "some stressor that happened years ago."

    "He was not demonstrating symptoms at that time when I was seeing him of post-traumatic stress disorder."

    The psychiatrist also said Guantanamo doctors prescribed Nashiri a series of antidepressants and offered him psychotherapy and exposure therapy for an anxiety disorder. The treatment required a commitment to cooperate because he could get worse before he got better.

    The doctor described exposure therapy as a patient's agreeing to be intentionally exposed to things that trigger anxiety, to recalibrate his brain's fear center, "to become more normalized, so in the future those same triggers will not cause the degree of anxiety or negative response or may not cause any anxiety whatsoever."

    At issue is a defense claim - Nashiri's lawyers describe it as medical malpractice - that Guantanamo prison's military doctors have not treated him for the trauma he suffered at the hands of the CIA. His lawyers want the judge, Army Col. James L. Pohl, to order specialized treatment, and asked Pohl to order training of Guantanamo medical staff treating former CIA prisoners by the torture expert who testified, Dr. Sondra Crosby.

    Navy Lt. Bryan Davis, a case prosecutor, told the judge he never should have heard from the doctors in the first place. Nobody argued that Nashiri was not competent to face trial, Davis said, and the judge shouldn't intrude in the military's running of Guantanamo prison camp.

    Davis also argued that Nashiri got adequate health care.

    In one exchange with the psychiatrist the prosecutor asked if Nashiri "received care in accordance with the standard of practice in the clinical guidelines."

    "Absolutely," the doctor replied.

    Nashiri, awaiting a death-penalty trial, is accused of orchestrating al-Qaida's Oct. 12, 2000, suicide bombing of the Cole warship off Yemen. Seventeen American sailors died.

    The military judge called the rare Sunday war court session to conclude a week of hearings once the military located the vacationing Army psychiatrist.

    The hearings resume after Memorial Day with a prosecution effort to scale back the judge's order to the government to give defense lawyers some of the CIA's most guarded secrets about its former black site program - including locations, dates, the identities of medical personnel and cables that discussed how to waterboard and use other "enhanced interrogation techniques" on Nashiri.

    The prosecutors wrote in their sealed motion to reconsider, according to Nashiri defense attorney Rick Kammen, that if Pohl, the judge, doesn't relent, they'll appeal outside Guantanamo - a development that would probably delay the trial until next year. It's now scheduled to start in December.

    http://www.mcclatchydc.com/2014/04/2...#storylink=cpy
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  2. #22
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    Saudi Al-Nashiri's defense wants to know probable execution method

    (MENAFN - Arab News) Lawyers defending a Saudi in prison in Guantanamo Bay for the suicide attack on the USS Cole on Oct. 12, 2000 in Aden Yemen have demanded to know how he will be put to death if convicted.

    The lawyers have expressed concerns in the wake of the last execution implemented in the state of Oklahoma in the US where the inmate did not die immediately after he was administered a lethal injection.

    Civilian defense attorney Richard Kammen had asked Vance Spath the military judge presiding over the case to order the secretary of defense to publish execution protocols for civilians convicted by military commissions. The judge an air force colonel has since deferred ruling on the motion.

    Prosecutors have maintained that they still do not know which method will be used for execution since Abdul Rahman Al-Nashiri may appeal the verdict.

    Al-Nashiri is faced with charges of terrorism and murder at a special tribunal for wartime offenses following the attack which killed 17 sailors and wounded dozens more.

    He is also accused of setting up an October 2002 bombing of the French tanker MV Limburg which killed one American crewman in addition to a failed January 2000 plot on the USS Sullivans.

    Al-Nashiri's trial was due to begin in February 2015 but is expected to be delayed due to lengthy procedures ahead of the trial.

    Kammen said the defense demands to know the execution method after Michael Wilson an Oklahoma inmate who was executed by lethal injection suffered before dying. Wilson's last words reportedly were 'I feel my whole body burning.'

    Wilson, 38, was executed using a cocktail of drugs including pentobarbital prison officials said. The use of pentobarbital in lethal executions has become increasingly common since sodium thiopental the drug historically used as an anesthetic became unavailable in 2011 after the manufacturer stopped supplying it for executions.

    But pentobarbital is considered a controversial substitute for sodium thiopental because its manufacture is often poorly regulated and contaminated batches can cause exruciating pain prior to death.

    http://www.menafn.com/1093907026/Sau...ecution-method

  3. #23
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    Alleged USS Cole mastermind seeks to avoid death penalty

    Guantanamo Bay Naval Base (Cuba) (AFP) - The defense team for a Saudi man accused of organizing the attack on the USS Cole asked a Guantanamo Bay judge Wednesday to stop him from facing capital punishment.

    Abd al-Rahim al-Nashiri faces the death penalty if convicted of charges stemming the Cole suicide bombing, and from the attack on the MV Limburg French oil tanker.

    Seventeen sailors died on the Cole in 2000 in Yemen; a Bulgarian sailor was killed in the 2002 Limburg attack.

    Al-Nashiri's lawyers have provisionally had the Limburg charges withdrawn, though the United States is appealing that ruling.

    In their motion to withdraw the death penalty in the Cole charges, the lawyers said "there is no military necessity served by executing the accused," adding that he is "far from the original theater of war in which he was captured" in 2002.

    "There's no deterrence in executing Mr Nashiri," said military defense lawyer Major Allison Danels, adding that such an action would only inflame tensions and would likely play into the hands of Islamic State jihadists.

    "It would do nothing but enrage the terrorists and give them reasons for their brutalities," she said at a preliminary hearing at the US naval prison camp in Guantanamo Bay, Cuba.

    Al-Nashiri was initially held for several years in secret CIA prisons.

    "Even if Mr Nashiri is acquitted, he can be detained indefinitely by the US, he's no danger for public security," Danels added.

    Military judge Colonel Vance Spath will decide on the motion later, but he acknowledged how long the case is taking to play out.

    "This case needs to move forward, because it's (been) here for a long time," he said, noting that the US government was still appealing the dismissal of the Limburg charges.

    Spath dismissed those charges this summer because he said the US military had not shown it had jurisdiction pertaining to the attack on a French vessel.

    The judge declined to give a date for al-Nashiri's trial, though it was initially supposed to open in February 2015.

    http://news.yahoo.com/alleged-uss-co...011713010.html
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    “There are lots of extremely smug and self-satisfied people in what would be deemed lower down in society, who also deserve to be pulled up. In a proper free society, you should be allowed to make jokes about absolutely anything.”
    - Rowan Atkinson

  4. #24
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    Cole case judge: Execution plan doesn't have to be shared

    Pentagon prosecutors don’t have to divulge the intended method of execution of the accused mastermind of the Cole bombing, a judge ruled Tuesday.

    Lawyers for Abd al Rahim al Nashiri, 50, asked the judge in August to order the government to identify how it would carry out capital punishment in the case of the Saudi who allegedly orchestrated al-Qaida’s suicide bombing of the destroyer off Yemen Oct. 12, 2000. Seventeen Norfolk-based sailors were killed in the blast, and dozens more were wounded.

    No trial date has been set. Richard Kammen, a capital defense attorney, argued that the method of execution might be relevant in selecting U.S. military officers for Nashiri’s jury. Kammen invoked a series of botched U.S. executions by lethal injection and said panel members might be “good with killing” on the battlefield or in an airstrike but might be put off if the plan is “to take him out to a big tree and hang him.”

    In his two-page ruling, the judge, Air Force Col. Vance Spath, agreed with a prosecutor who argued in August that the request was premature because Nashiri has neither been convicted nor received a sentence.

    The legal motion sought the “protocols and procedures” for a proposed execution, the method, planned site and how the executioners would be trained.

    Spath left as an open question whether any such documentation exists at the Pentagon, which last carried out a military execution in 1961 by hanging an Army private for rape and attempted murder of a child.

    According to the rules for the war court President George W. Bush created and President Barack Obama reformed, the Secretary of Defense designates the method of execution.

    “Federal jurisprudence holds the protocols are not relevant until an execution date is established, a date unknowable . . . at this point in time in the process of conducting this trial,” Spath wrote.

    http://hamptonroads.com/2015/03/cole...have-be-shared
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  5. #25
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    Prosecution gets new delay in USS Cole proceedings

    Expect more indefinite delays in the already mostly frozen Guantánamo death-penalty trial of the Saudi man accused of orchestrating al-Qaida’s 2000 bombing of the USS Cole warship off Yemen.

    U.S. military prosecutors sought, and a Pentagon appeals panel agreed, to delay hearing an overarching question of whether Abd al Rahim al Nashiri, 50, can not only be charged with the terror attack on the U.S. Navy destroyer that killed 17 American sailors but also a 2002 bombing of a French oil tanker the Limburg.

    The judge in the case, Air Force Col. Vance Spath, had thrown out the Limburg charges and prosecutors want a Pentagon panel of civilian and military judges to reinstate them. Nashiri prosecutors are also appealing a decision by Spath to limit the scope of the USS Cole charges.

    First, however, on the advice of the civilian U.S. Court of Appeals for the District of Columbia Circuit, which would ultimately review any Nashiri conviction, the prosecutors are considering whether to ask Congress to tweak the Military Commissions Act that created the Guantánamo war court with respect to how U.S. military judges serve on a Pentagon appeals panel.

    The Pentagon panel, called the U.S. Court of Military Commissions Review, is a hybrid of civilian judges approved by Congress and U.S. military judges who were added to the panel by the Secretary of Defense. Nashiri’s lawyers call that composition unconstitutional, saying Congress must approve all judges under The Constitution’s Appointments Clause.

    Earlier this month, the U.S. Court of Appeals for the District of Columbia Circuit said it would not decide that Appointments Clause challenge until after Nashiri’s case was over, and if he’s convicted. But it recommended the Obama administrative preemptively fix the law to make the war court panel consistent with the Appointments Clause.

    Friday, the war court prosecutor sought and won a delay on its case at the Military Commissions Review court “while it explores options for re-nomination and re-confirmation of the military judges as U.S.C.M.C.R. judges,” the order issuing the stay said.

    Separately, Nashiri’s capital defense attorney, Richard Kammen, said Monday that as part of trial preparation examining Nashiri’s “conditions of confinement” the prosecution should make available photos they discovered of the CIA secret prison program that interrogated Nashiri in the four years before his transfer to Guantánamo in September 2006.

    The Washington Post reported that prosecutors recently discovered “a massive cache” of photos of the facilities where CIA agents held their post-9/11 captives as well as naked detainees in transit — but none of the men being interrogated.

    “The fact that the prosecution apparently just learned of the existence of 14,000 photographs is quite troubling,” said Kammen, adding that the trial judge more than a year ago ordered release of all photos depicting Nashiri’s conditions of confinement and how he was transferred around the globe from secret prison to secret prison.

    Still unclear Monday was whether the war court prosecutor would seek to fix the Military Commissions Act in the current National Defense Authorization Act, which the White House might veto, or through another piece of legislation.

    A Pentagon spokeswoman responsible for war court issues, Henrietta Levin, declined to predict on Monday how long the proceedings would be delayed. The trial judge, Spath, has abated the proceedings indefinitely pending the appeal, canceling all future war court sessions in the case at Guantánamo.

    Levin also declined to comment on the prosecution discovery of the 14,000 photos. She noted that prosecutors are updating Spath periodically in their “efforts to comply with discovery obligations and judicial orders.”

    http://www.miamiherald.com/news/nati...#storylink=cpy
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  6. #26
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    Military judge to lone USS Cole lawyer: 'Engage in self-help' to learn capital defense

    The dilemma of how to go forward with the USS Cole death-penalty trial after the capital defense lawyer quit loomed over this week's hearing - with prosecutors authenticating signatures on packages of evidence from the 2000 bombing site, and a defense attorney refusing to participate.

    The judge, Air Force Col. Vance Spath, repeatedly rejected an argument by the lone defense lawyer, former Navy SEAL Lt. Alaric Piette, that the hearings should cease until an experienced capital defense attorney reaches court.

    At one point, the judge scolded Piette for mounting no defense in a pretrial hearing and urged the 2012 Georgetown Law graduate to "engage in self help" by attending special training to become "more comfortable handling capital matters." Piette has never worked on a capital defense before and does not meet the American Bar Association standard for death-penalty defense counsel, an argument the judge rejects.

    The crisis was sparked by the resignations in October of three civilian defense attorneys on ethical grounds. In November, Spath rejected their resignations and then convicted their supervisor, Marine Brig. Gen. John Baker, of contempt of the war court for releasing them from the case - a conviction the general is appealing in federal court claiming a due-process violation and judicial overreaching.

    Monday, the judge pressed ahead with pretrial preparation as prosecutors called a series of FBI agents and technicians from the time of the Oct. 12, 2000 warship bombing to authenticate their signatures on evidence bags collected at the site. In one instance,

    FBI agent Jeffrey R. Miller testified that he had signed another agent's name to some evidence because Agent Robert Holley was otherwise occupied - a sign of the crime-scene chaos even days after the al-Qaida attack on the warship off Aden, Yemen.

    Former CIA captive Abd al Rahim al Nashiri, 53, is accused of orchestrating the attack that killed 17 U.S. sailors and wounded dozens of others. Prosecutors are seeking the death penalty.

    2 suicide bombers pulled a skiff alongside the Cole while it was on a refueling stop, and blew up the boat.

    The agents arrived at the foundering destroyer days later to recover some of the dead and scoop up charred evidence. FBI Special Agent Lisa LoCascio, a 1982-1998 Miami-Dade cop, described very difficult 110-degree-plus working conditions below deck amid jagged metal in the dark and an "overwhelming" smell she knew from her time as a Miami-Dade homicide detective.

    The agents had to move evidence from ship to shore then onto a U.S. Navy amphibious assault ship, the Tarawa, in a multi-stop journey to the FBI lab at Quantico, Virginia. The Tarawa sailed to Dubai, where the evidence was transferred to a U.S. charter that made an overnight stop at a military base in Germany before heading to the Norfolk Navy base, where FBI lab technicians collected it.

    Monday's hearing involved agents authenticating their signatures on chain-of-custody sheets that showed just four or five stops, including at one point an agent turning evidence over to herself. Yet Piette declined to question the witnesses, declaring he was taking "no position other than to object to this proceeding taking place without learned counsel." Learned counsel is the American Bar Association's term for a qualified death-penalty defender.

    Piette took no position 32 times in court on Monday alone.

    His position prompted a case prosecutor, Air Force Maj. Michael Pierson, to read a statement into the record accusing both the attorney present and those who were absent of a "shameless, disingenuous, and conceited course of conduct" that will not succeed "in ultimately frustrating justice."

    In court Friday, Spath quizzed the deputy chief defense counsel for military commissions on plans to get a learned counsel to court. Army Col. Wayne Aaron, who began supervising the case after the judge jailed the chief defense counsel, said he had found someone and forwarded that lawyer's name to a senior Pentagon official, Harvey Rishikof, who decides on hiring and spending at the war court.

    Learned counsel earn the federal rate of $185 an hour, and the unnamed person Aaron selected is a civilian with no previous war court experience and no security clearance, meaning it could be some time before that lawyer gets to court. Spath has also asked

    Rishikof to work on mobilizing a Navy Reservist, Cmdr. Brian Mizer, who has USS Cole case defense experience.

    Spath considers Mizer qualified to serve as a death-penalty defender, although Piette and others say Mizer doesn't meet the ABA definition of a learned counsel. Secretary of Defense Jim Mattis may have to weigh in on the question of whether to mobilize Mizer, who has refused to come to court voluntarily.

    Friday, Aaron opposed the resumption of the hearings, telling Spath, "We would be risking a great deal to allow this proceeding to continue without our client having the clear right to learned counsel."

    Spath cut his fellow colonel off, declaring, "Those are great talking points. You know what learned counsel are? They're people who go to training."

    Later the judge turned his ire on Piette for continuing to declare himself unqualified to litigate without an experienced death-penalty defender guiding him.

    "What saddens me is that military officers don't recognize, with your experience, you're every bit as qualified and competent, frankly, as many capital counsel that I've watched appear in courts," said Spath, who has been a military judge for the past 6 years and chief of the Air Force judiciary for 4. "It's embarrassing that we will sacrifice the performance and competence of military counsel for this belief that some civilian is so much better than you."

    For this week's session the judge had prosecutors issue subpoenas to 2 of the 3 resigned civilian lawyers - Pentagon paid attorneys Rosa Eliades and Mary Spears - then postponed what to do about their refusal to appear until the next session, scheduled for Feb. 12-23.

    Spath also said in court that he is awaiting decisions from two federal courts on 2 challenges to his authority before addressing the absence of Rick Kammen, Nashiri's long-serving learned counsel who quit the case after nearly a decade of representing him.

    (source: Miami Herald)
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    “There are lots of extremely smug and self-satisfied people in what would be deemed lower down in society, who also deserve to be pulled up. In a proper free society, you should be allowed to make jokes about absolutely anything.”
    - Rowan Atkinson

  7. #27
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    Lawyer for alleged USS Cole bomber urges appeals court not to lift trial abatement

    By Carol Rosenberg
    The Miami Herald

    GUANTANAMO BAY NAVY BASE, CUBA - The lone lawyer for the man accused of orchestrating the 2000 bombing of the USS Cole warship off Yemen is asking a war court review panel to stay out of a judge’s decision to halt the proceedings.

    Navy Lt. Alaric Piette argues in his Feb. 28 brief that the U.S. Court of Military Commissions Review cannot review a decision to suspend a trial through abatement, only a dismissal of the charges, something Judge Air Force Col. Vance Spath chose not to do when he stopped the proceedings on Feb. 16.

    “The military judge’s abatement … did not terminate proceedings,” Piette wrote in a 10-page petition obtained by the Miami Herald. He cast Spath’s suspension as a “prudent step” to ensure that alleged USS Cole bomber Abd al Rahim al Nashiri “has capitally-qualified learned counsel before he stands trial in a capital case.”

    The Saudi, who was captured in 2002, is accused of engineering al-Qaida’s Oct. 12, 2000, suicide bombing of the warship off Yemen that killed 17 U.S. sailors. He was brought to Guantánamo in 2006 and arraigned in 2011.

    The case has been mostly deadlocked since veteran criminal defense attorney Rick Kammen, an American Bar Association recognized death-penalty lawyer, quit the case on Oct. 13 along with two other Pentagon-paid civilian defense attorneys. The three got an ethics opinion saying that they had to resign over their belief, based on something classified, that their confidential attorney-client conversations were compromised.

    As he halted the trial, Spath offered a recitation of his frustrations and said that he was looking for guidance from a superior court on how to proceed in the absence of a death-penalty defender and defiance by what he calls the Pentagon “defense community” over his orders to reinstate resigned lawyers.

    Piette’s filing noted that the judge ordered the Pentagon to recall to service a reserve Navy lawyer, and argued that process should be allowed to happen. He cast the essence of the issue confronting Spath as his desire to make sure Nashiri has an “adequately resourced defense.”

    Piette has consistently argued that he, a 2012 Georgetown Law School graduate with no death-penalty experience, is not qualified to represent Nashiri in court. At the same time, Piette’s supervisor, Army Col. Wayne Aaron, has found a private sector attorney willing to serve as a death-penalty defense attorney, a learned counsel. That lawyer has not been identified.

    Prosecutors have not yet outlined their theory of how the Pentagon panel, which is designed primarily to review war court convictions, could overrule a judge’s decision to abate. But a filing by prosecutors seeking permission to exceed the court’s 14,000-word limit and instead submit a 21,500-word brief suggests that war court prosecutors may be asking the review panel to decide a series of cascading questions that stymied Spath’s ability to get the trial back on track.

    Those include a war court judge’s contempt authority; his ability to compel a Pentagon employee to come to Guantánamo, if only by video link; and an overarching question of whether the Chief Defense Counsel or a judge has the unilateral authority to release a lawyer from a war court case.

    Kammen, Rosa Eliades and Mary Spears all quit the case with permission of Marine Brig. Gen. John Baker, the Chief Defense Counsel, whom the judge subsequently sentenced to 21 days confinement for refusing to order them to return to the court.

    http://www.miamiherald.com/news/nati...203206329.html
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    “There are lots of extremely smug and self-satisfied people in what would be deemed lower down in society, who also deserve to be pulled up. In a proper free society, you should be allowed to make jokes about absolutely anything.”
    - Rowan Atkinson

  8. #28
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    New Air Force colonel to preside in Guantánamo’s stalled USS Cole case

    A new judge has been assigned to preside at Guantánamo’s stalled trial of a Saudi man accused of plotting al-Qaida’s suicide bombing off the USS Cole warship off Yemen in 2000 that killed 17 U.S. sailors.

    Air Force Col. Shelly W. Schools replaced the retiring chief trial judge, Vance Spath, on Monday, according to a memo obtained by McClatchy.

    Spath drew national attention in November for summarily convicting the chief defense lawyer, Marine Brig. Gen. John Baker, of contempt of court — and then ordering him to serve 21 days confinement in his trailer behind Guantánamo’s war court. Spath then quietly put in for retirement soon after a federal judge overturned Baker’s conviction.

    Schools is a career Air Force lawyer who joined the service in 1997, the year she graduated from the University of Mississippi law school. It is unclear how soon she will appear on the military commissions bench.

    At the request of war court prosecutors, a Pentagon panel, the U.S. Court of Military Commission Review, is deciding a range of questions Spath raised after he indefinitely froze pretrial proceedings in the death-penalty case against alleged Cole bomber Abd al Rahim al Nashiri — including the scope of the war court’s contempt authority as well as who has the power to release attorneys of record from ongoing proceedings.

    https://www.charlotteobserver.com/ne...#storylink=cpy
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  9. #29
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    War court judge pursued immigration job for years while presiding over USS Cole case

    GUANTANAMO BAY NAVY BASE, Cuba — A military judge in what was to be Guantánamo’s first death-penalty trial spent more than half his tenure on the war court bench seeking civilian employment as an immigration judge, documents obtained by McClatchy show.

    Air Force Col. Vance Spath was presiding in the USS Cole tribunal — the precursor to Guantánamo’s more high-profile Sept. 11 capital murder trial — and was looking for a way out. He would eventually secure that position with an appointment from former Attorney General Jeff Sessions this summer.

    But a review of his federal, civilian employment file, obtained under the Freedom of Information Act, shows that Spath pursued the job at a time when Justice and Defense Department prosecutors were appearing before him in the USS Cole case but didn’t disclose it. His application, in fact, highlighted his role in the Guantánamo case as well as his role as the chief Air Force trial judge.

    It was Nov. 19, 2015, and Spath submitted an application for employment with the Justice Department led by Attorney General Loretta Lynch. Spath got the USS Cole case against Saudi captive Abd al Rahim al Nashiri about 16 months earlier.

    “I have a significant degree of experience in managing high volume litigation,” Spath wrote in his application. The USS Cole tribunal was on hold while the U.S. Court of Military Commissions Review reviewed, and then ultimately reinstated, some charges Spath had dismissed. “The case at Guantánamo Bay, Cuba, has significant media and federal government interest, and it again requires the constant demonstration of the appropriate judicial temperament,” Spath wrote.

    Spath would first get an offer for a temporary seat in the immigration court from Lynch on Sept. 23, 2016. After Donald Trump took office as president, Sessions renewed the offer on March 20, 2017, but he then began salary negotiations. Sessions signed an appointment order on June 6, 2018, and Spath was ultimately sworn in as an immigration judge three months later, on Sept. 28.

    The timeline is significant and obtained exclusively using FOIA at a time when defense attorneys in the USS Cole death-penalty case were denied information on Spath’s job search through judicial discovery by the U.S. Court of Military Commissions Review, the USCMCR. Saudi Abd al Rahim al Nashiri is accused of plotting al-Qaida’s suicide bombing off Aden, Yemen, on Oct. 12, 2000, that killed 17 American sailors and wounded dozens more. He could be executed if he is convicted.

    A federal court put the Nashiri case on hold Nov. 7 to consider an appeal by Nashiri’s lawyers that argues Spath’s pursuit of an immigration judge position — while presiding in a case that has Department of Justice prosecutors — constituted “judicial misconduct.” They accuse Spath of trying to rush the case to trial so he “could retire from the military at full pension and assume additional employment in the Justice Department.” They want the U.S. Court of Appeals for the District of Columbia Circuit to revoke all of Spath’s rulings in the case from the moment he began his behind-the-scenes pursuit of the civilian judge’s job.

    Nashiri’s military defense attorney, Navy Capt. Brian Mizer, said Spath had an obligation to disclose the job application, and let defense attorneys question him on the record. Spath never did.

    “Whether it’s the Department of Justice or Taco Bell you need to know whether your judge is an applicant for employment,” he said after hearing about the application and negotiation timeline. “This is a big problem and I think any objective observer who looks at it knows that. The system has to be fair and it also has to appear to be fair. How does it do that if you are negotiating for employment from one of the parties? And I would add, in a death case.”

    Spath and his legal assistant at the immigration court in Arlington, Virginia, did not respond to requests for comment sent using email, LinkedIn messaging and voicemail.

    McClatchy asked for Spath’s employment record under FOIA on July 17 after a reporter learned of his pursuit of employment and a Department of Justice spokesman refused to confirm it. The Executive Office of Immigration Review, a DOJ subsidiary, released 311 pages of internal emails. Some of the material is blacked out.

    His application included a letter from retired Army Col. Fred Taylor, who had served as Spath’s attorney-adviser in the USS Cole case and was by then trial judiciary staff director. Taylor offered his “enthusiastic and unqualified endorsement” of Spath for an immigration judge’s job. Spath, Taylor wrote, “consistently treated the counsel, some being uniformed judge advocates, some being Department of Justice prosecutors” as well as the civilian learned counsel and others “with utmost dignity and respect.” It was dated Nov. 5, 2015.

    Another letter in Spath’s application file, dated Nov. 12, 2015, came from Air Force Col. Mark Allred, a judge on the Air Force Court of Appeals and on the USCMCR. “I cannot imagine how you could find a finer candidate,” wrote Allred, who retired from the military in 2016. “His command of the courtroom is superb. His mastery of the law is evident in every ruling. His demeanor is perfect.”

    Allred was chief Air Force Judge before Spath. He wrote the letter while sitting on both the Air Force Court of Appeals and the war court appellate panel, where he now says he “actually did so very little because of how things were so snagged in the system.” Allred retired from the U.S. military in 2016 and left both benches.

    Reached in London recently, he said it was “quite commonplace among judges that I knew as they got close to retirement” to get letters of recommendation. Administrative law judge positions, such as at immigration court, were considered “kind of their dream job.”

    Allred said he wrote dozens of recommendations, for lawyers and other judges. He said he was unaware of any specific Air Force policy on a judge’s duty to disclose a job application or leave a case because of the nature of the job being sought.

    “I could see there might be some kind of conflict there,” he said, saying you’d have to consider a possible conflict on a case-by-case basis. “I don’t see it as a specious argument, nor am I particularly alarmed by it.”

    Spath submitted the application and letters in an 18-month hiatus of USS Cole case hearings, starting March 3, 2015, because prosecutors were appealing one of his rulings and ending on Sept. 7, 2016.

    By then, Spath had already interviewed for the immigration judge job, on March 29-30, 2016, and signed a release form for a background check in which he noted, “I do have an active TS-SCI security clearance,” which is the specialized Top Secret clearance required for anyone practicing law at the Nashiri trial.

    The interviews took place 19 months before Spath would capture national attention in a showdown with defense attorneys in the USS Cole case. The lawyers had found microphones hidden in their attorney-client meeting room, but Spath ruled they could not investigate who was listening. He also told them they could not inform Nashiri about the suspected breach of confidentiality, because the accused bomber did not have a security clearance. So death-penalty defender Rick Kammen and two other Pentagon-paid civilian defense lawyers resigned, leaving a Navy lieutenant with no death-penalty experience on the case.

    The trio got permission to quit from Marine Brig. Gen. John Baker, the chief defense counsel. Spath, however, declared the general had no authority to do so, and ordered Baker to reinstate them. Baker knew about the hidden microphone at a time when the public and defendant did not. He refused.

    Spath found the general in contempt of the war court on Nov. 1, 2017, a first in the history of the military commissions set up by George W. Bush after the Sept. 11 attacks — and had military police confine the general to his quarters, a trailer on the Guantánamo court complex called Camp Justice.

    A senior Pentagon official released Baker two days later, but the conviction stood until a federal judge struck it down June 18, saying Spath had no such contempt authority.

    Unknown to the public, or the defense teams, was that six months earlier on May 17, 2017, Spath had concluded salary negotiations for a post-retirement immigration judge job to be based in Arlington, Virginia, and pay $164,620. Earlier, the director of the Department of Justice’s Office of Attorney Recruitment and Management, Jamilla Frone, had offered him $114,940 for the job, according to a letter to him with no date on it.

    Sessions signed a temporary appointment order on March 20, 2017, and a week later Spath submitted an earning statement to the Immigration Court.

    He was formally made an offer on June 21, 2017, and responded by email on July 12, 2017, at 7:12 a.m. that he needed a delay and would be traveling “for the next three weeks.” He held his seventh round of hearings at Guantánamo July 31 to Aug. 4.

    He would continue to negotiate a delayed start date throughout the defense attorney resignation showdown. On Feb. 16, 2018, Spath froze the proceedings, saying he would not continue until a “superior court” resolved the question of who can relieve defense attorneys of record — the judge or the chief defense counsel, among others.

    But the night before, at 8:02 p.m. on Feb. 15, Spath emailed the Executive Office of Immigration Review confirming receipt of an email offering him a July 8 start-of-employment date.

    Spath, his court staff, prosecutors and the lone Navy lieutenant left to defend Nashiri returned to the United States on Feb. 17. That was Spath’s last known trip to Guantánamo — and haggling over the colonel’s Air Force retirement date and immigration court start date continued behind the scenes.

    On June 6, 2018, Sessions signed a document converting a temporary job into formal appointment, according to one internal email, and another said Spath’s intended hire date was July 9, 2018.

    But on June 14, 2018, a deputy chief immigration judge, Christopher Santoro, wrote in an email that there were problems: Spath’s retirement hadn’t gone through and, without explaining who, noted “they’re holding to see what the Secretary of Defense is going to do … The case he is on at Guantánamo Bay has enough visibility that his departure is beyond AF (Air Force) control.” In addition, he made reference to a delay in getting a new war court judge a clearance, apparently to replace Spath.

    Air Force Col. Shelly Schools got the case Aug. 6 but has yet to hold a hearing. By Sept. 10, Spath was training as an immigration judge and was photographed at Sessions’ elbow. On Nov. 7, the U.S. Court of Appeals in Washington, D.C., issued a stay to consider whether Spath was required to disclose his intentions to retire and potentially withdraw from the case because he was pursuing a job with the Department of Justice.

    That same day, as it happens, Sessions left the job as attorney general.

    https://www.gazettextra.com/news/nat...c0cf30c42.html
    An uninformed opponent is a dangerous opponent.

    "Y'all be makin shit up" ~ Markeith Loyd

  10. #30
    Senior Member CnCP Legend Mike's Avatar
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    US official: Airstrike kills mastermind behind USS Cole bombing that killed 17 sailors

    By CNN

    The man behind the 2000 attack on the USS Cole is believed to have been killed in a US airstrike in Yemen on Tuesday, according to a US administration official.

    Jamel Ahmed Mohammed Ali Al-Badawi was an al-Qaeda operative who the US believes helped orchestrate the October 12, 2000, attack on the Norfolk-based USS Cole that killed 17 American sailors.

    The official said all intelligence indicators show al-Badawi was killed in a strike in Yemen as a result of a joint US military and intelligence operation.

    US officials told CNN that the strike took place in Yemen's Ma'rib Governorate.

    The administration official said that al-Badawi was struck while driving alone in a vehicle and that the US assessed there was not any collateral damage.

    Al-Badawi was on the FBI's list of most wanted terrorists.

    The Cole was attacked by suicide bombers in a small boat laden with explosives while in port in Aden, Yemen, for refueling. The attack also wounded 39 sailors.

    The bombing was attributed to al-Qaeda and foreshadowed the attack on the US less than one year later on September 11, 2001.

    Al-Badawi was arrested by Yemeni authorities in December of 2000 and held in connection with the Cole attack but he escaped from a prison in Yemen in April of 2003.

    He was recaptured by Yemeni authorities in March of 2004 but again escaped Yemeni custody in February 2006 after he and several other inmates used broomsticks and pieces of a broken fan to dig an escape tunnel that led from the prison to a nearby mosque.

    The State Department's Rewards for Justice Program had previously offered a reward of up to $5 million for information leading to his arrest.

    Abd al Rahim al-Nashiri, an al-Qaeda militant also seen as a key figure in the bombing, has been in US custody since 2002 and has been held at the detention facility in Guantanamo Bay, Cuba since 2006.

    US military prosecutors have charged al-Nashiri with murder for allegedly planning the attack on the USS Cole.

    Al-Badawi is also not the first high-profile al-Qaeda target that the US has killed in Yemen.

    US officials told CNN in August that a 2017 CIA drone strike in Yemen killed Ibrahim al-Asiri, a master al-Qaeda bombmaker.

    Al-Asiri, a native of Saudi Arabia, was the mastermind behind the "underwear bomb" attempt to detonate on a flight above the skies of Detroit on Christmas Day in 2009.

    He was widely credited with perfecting miniaturized bombs with little or no metal content that could make it past some airport security screening. That ability made him a direct threat to the US, and some of his plots had come close to reaching their targets in the US.

    The US has sought to prevent al-Qaeda from exploiting the chaos of Yemen's civil war to establish a safe haven and the US military carried out 131 airstrikes in Yemen in 2017 and conducted 36 strikes in 2018, nearly all of them targeting al-Qaeda in the Arabian Peninsula, a terror group that both al-Asiri and Al-Badawi have been associated with.

    The CIA has not revealed how many strikes it has carried out. CIA drone strikes are not publicly acknowledged.

    https://wtkr.com/2019/01/04/us-offic...-cole-bombing/

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