In Monday afternoon’s court session in the Guantanamo case involving the alleged mastermind of the 2000 USS Cole suicide bombing case, the defense claimed that Pentagon officials were interfering with the judge’s independence, threatening to undermine the entire case. The judge, Air Force Col. Vance Spath, is conducting further inquiry before determining whether unlawful interference exists, and if it does, what the remedy should be.

The defendant, al Nashiri, was arraigned several years ago, and there have been many delays in this death penalty case. The officials stated in e-mails and other communications that they wanted the case to move more quickly, and one official signed an order commanding the judge to change from part-time to full-time on the case, and to physically relocate to Guantanamo Bay until the case was finished, which could be many months or years.

The defense argued that only the judge controls the pace of the trial, and it is “unlawful interference” for a non-judicial official to seek to interfere with a judge’s command of his courtroom.

Most participants commute to Guantanamo Bay

Virtually all participants in the Guantanamo Bay cases live in the U.S. mainland, and commute to Guantanamo Bay for hearings. This includes the defense and prosecution lawyers, the court staff, the press and the NGO Observers, and the interpreters. The judges in this and the other two active cases are the only ones ordered to move to Guantanamo Bay. The chief prosecutor, who is a Brigadier General Mark Martins, was not ordered to move to Guantanamo, and neither were other military officers assigned to work on the cases.

Stalled hearings

Judge Spath halted the hearings mid-afternoon after ordering the Pentagon official who made the order to testify about the order. That official, called the Convening Authority for the military commissions, is Retired Major General Vaughn A. Ary. Judge Spath said General Ary could fly to Guantanamo Bay to testify, or he could testify by video. His testimony is expected as early as tomorrow, Tuesday, 24 February 2015.

What is “unlawful interference” with the judge.

The Guantanamo Bay Fair Trial Manual discusses law related to “unlawful interference”, and the independence of judges, and identifies a checklist of questions to ask in seeking to determine whether judges’ independence has been compromised. Under international and domestic U.S. law, judges are required to be independent, and are required to appear to be independent. Outside, objective observers should be able to view a judge and his decisions and not be concerned about whether some outside, non-judicial entity is “pulling the strings” or exercising unlawful command authority over the judge.

All stakeholders in the Military Commissions have rights and interests. This includes not only the defense, which clearly has rights, but also includes the prosecution, the victims and their families, the media, NGO Observers, court personnel, security guards, and others. The Guantanamo Bay Fair Trial Manual outlines many of these rights and interests.

(George Edwards, Ft. Meade, 23 February 2015)