By Paige Leskin
GUANTANAMO BAY NAVY BASE, Cuba — Although the Pentagon late Thursday reversed its order that the judge presiding over the USS Cole bombing trial had to move to Guantanamo for the duration of the proceedings, lawyers for the man accused of in the attack argued Friday that the order still constituted unlawful meddling and the case should be dismissed.
The presiding judge, Air Force Col. Vance Spath, announced in court Friday that the order to relocate had been rescinded for the judges in the three Guantanamo military trials. The order had been issued by retired Maj. Gen. Vaughn Ary, the civilian who oversees the Guantanamo military commissions, as a way to speed up the trial.
Deputy Secretary of Defense Bob Work made the decision to revoke Ary’s relocation plan to ensure the military commissions in Guantanamo were fair and “consistent with the interests of justice,” spokeswoman Lt. Cdr. Courtney Hillson said in a statement.
But despite the Pentagon’s decision to drop the forced relocation, the question of Ary’s unlawful interference as the convening authority still stands. The motion was argued this week during the pretrial hearings in the prosecution of Abd al-Rahim al-Nashiri, a suspect in the 2000 bombing of the USS Cole off the coast of Yemen.
Defense lawyer Navy Cmdr. Brian Mizer called Friday for the al-Nashiri trial to be dismissed in light of Ary’s unlawful meddling. Al-Nashiri was first arraigned in 2006 for war crimes related to the attack on the ship that killed 17 American sailors. He is also named in the Senate’s 2014 CIA torture report as one of the five high-level detainees subjected to torture and interrogation methods, including waterboarding and rectal feeding.
The judge expressed concern over the motive behind the recommendation from Ary, who knew the relocation order could result in the removal of the three sitting judges. Spath asked prosecutor Col. Robert Moscati to consider the public perception of Ary’s order.
“For the public, don’t you think they would wonder about a trial judge’s decision who was ordered to move to Guantanamo until this trial is finished?” Spath said. “Does that give any cause of concern?”
Spath also questioned why Ary had singled out the judges to physically move to Guantanamo, but not any of the other trial participants. There’s no “sensible purpose” for the judges to wait in empty courtrooms for judiciary support staff, attorneys and interpreters to fly down to the naval base, Spath said.
Work’s decision to rescind the move-in orders for the three judges came less than 24 hours after Army Col. James Pohl, the judge in the trial of the accused 9/11 planners stated he would halt his proceedings until the relocation order was reversed.
Work’s decision resulted in the cancellation of witness statements Friday from three high-ranking military legal officers in the USS Cole trial. The Judge Advocate Generals of three military branches were planning to testify on Ary’s relocation orders, but Spath said their appearances were irrelevant after the rescission.
The judge said he hopes to issue a ruling on the unlawful influence motion by 10:30 a.m. Monday.