Military judge orders overseer of Gitmo cases replaced due to appearance of unlawful influence

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FORT MEADE, Maryland — A military judge ordered the Defense Department Monday to replace the overseer of war crimes tribunals at the U.S. Navy base in Guantanamo Bay, Cuba, declaring that his ill-fated attempt to accelerate the cases amounted to unlawful influence.

The judge, Air Force Col. Vance Spath, said the current convening authority, retired Marine Corps Maj. Gen. Vaughn Ary, exceeded his statutory discretion by requiring Guantanamo judges to move to the U.S. naval base to focus on those cases, despite having other cases on their schedule. Spath said the requirement could have led to his own removal from the Guantanamo case of Abd al-Rahim al-Nashiri, the prisoner charged in the USS Cole bombing in 2000.

The Pentagon rescinded the relocation requirement last week after the judge in another case reached a similar conclusion. Spath said the episode had tainted the proceedings by giving an appearance of unlawful influence by a commander, which he called "the mortal enemy of military justice."

"Any objective observer would wonder if this is a punitive measure taken against trial judges," Spath said. "They would easily wonder if decisions were made in the interest of speed rather than a just, fair outcome."

Spath didn't halt this week's pretrial hearing for al-Nashiri but said he would hear arguments only on procedural, rather than evidentiary, issues until Ary has been replaced as convening authority for the U.S. Office of Military Commissions.

The agency's spokesman, Army Lt. Col. Myles Caggins, said, "the government is studying the judge's ruling and, if necessary, will make any additional comments through appropriate court filings."

There was no immediate reaction from Deputy Secretary of Defense Robert Work, who approved and then rescinded the relocation requirement that Ary initiated.

Al-Nashiri was charged in the Cole attack in 2011 and has been in U.S. custody since 2002, part of that time in the CIA's clandestine prison system. He was transferred to the prison at Guantanamo Bay in September 2006 for the second time.

Al-Nashiri, a Saudi national, faces a possible death sentence if convicted of planning and preparing for the attack that blew a hole in the warship, killing 17 sailors and wounding another 40, in Yemen.

The Pentagon withdrew the relocation requirement Thursday, one day after the judge presiding over the case of the five men charged in the Sept. 11 attacks ruled that it created the appearance of unlawful influence and ordered an abatement of proceedings unless it was rescinded.

The Associated Press covered the hearing in Cuba from a closed-circuit video feed at Fort Meade, near Baltimore.


Associated Press writer Ben Fox in Miami contributed to this report.

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