Judge Steps Aside in Cole Case, Lawyers Question Appointee

By Terri Moon Cronk

DoD News, Defense Media Activity

FORT MEADE, Md., Aug. 4, 2014 – The judge in the military commission related to the USS Cole bombing has taken himself “off detail” in the case, and the newly assigned judge took on three hours of questioning from defense attorneys today.

The Office of Military Commissions convened a week of hearings at Naval Station Guantanamo Bay, Cuba, today in the case of alleged al-Qaida operative and Saudi-born Abd al Rahim Hussayn Muhammad al-Nashiri, the suspected mastermind of the alleged 2000 Navy ship attack and other terrorist acts. Reporters who did not travel to the hearing in Cuba viewed the proceedings from a live satellite feed here.

Army Col. James L. Pohl “undetailed” himself recently and named Air Force Chief Trial Judge Col. Vance H. Spath to hear the case as of July 10.

Pohl made his decision to avoid schedule conflicts so he could judge the case against Khalid Sheikh Mohammed and four co-conspirators, according to a statement made yesterday by Military Commissions Chief Prosecutor Army Brig. Gen. Mark Martins.

Mohammed is the alleged mastermind of the Sept. 11, 2001, attacks against the United States. Pretrial hearings in that case resume Aug. 11.

As court commenced this morning, Spath voluntarily fielded questions from defense attorneys in a voir dire process often used in juror questioning. For three hours, Nashiri’s lawyers asked Spath questions ranging from his knowledge of the case to his qualifications to become the judge.

“I will do my level best to hear both sides [objectively],” Spath told the defense. “My job is to make sure [the case] is not only perceived as fair, but is fair.”

In a motion filed with the court prior to today’s session, defense attorneys called for Spath’s recusal, alleging prosecution wrongdoing in a 10-year-old case in which Spath was the judge. Spath denied the motion to recuse himself early this afternoon.

“There is no bias,” Spath said of the former case in his decision to stay on the bench in the Nashiri case. “The motion is denied.”

The case’s docket includes defense motions to pay for additional consultants and a government motion to admit photographs and videos into evidence, chief prosecutor Martins said in his statement. He emphasized that ongoing work has been “significant” in the case since Nashiri’s last pretrial hearing in May. He cited the following advances:

-- More than 240,000 pages of material comprising the government’s case have been disclosed to the defense as required by law.

-- The prosecution and defense briefed 332 written motions and argued about 235 oral motions in pretrial proceedings.

-- Of those briefed motions, 31 were mooted, dismissed, or withdrawn; the commission ruled on 207; and 91 others are pending decision.

-- The commission gathered testimony from 10 witnesses, all of whom were subject to cross-examination to decide pretrial motions.

-- The prosecution and defense have filed 34 exhibits and 18 declarations alleging facts and providing references to the commission.

In addition to charges surrounding the attack on the USS Cole, which killed 17 sailors and wounded 40 others, Nashiri faces charges from an attempted attack on the USS The Sullivans in January 2000 and an attack on the French-flagged oil tanker Limburg in October 2002.

The Cole was in Aden, Yemen, for a routine fuel stop when a small watercraft approached the ship’s port side and exploded. U.S. officials allege Nashiri was under the supervision of al-Qaida leader Osama bin Laden and that bin Laden personally approved the attacks.