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Controversial Guantanamo judge joins Jeff Sessions in immigration judge ceremony

Col. Vance Spath

U.S. AIR FORCE

By CAROL ROSENBERG | Miami Herald | Published: September 14, 2018

(Tribune News Service) — The military judge who got headlines for convicting a Marine general of contempt and confining him to his Guantanamo quarters has apparently found a new bench – as an immigration judge, prompting defense lawyers to demand that all his rulings since 2014 be thrown out.

Air Force Col. Vance Spath, the former judge in Guantanamo's USS Cole case, had filed to retire on Nov. 1 from 26 years military service, an Air Force spokeswoman said this summer. He could clearly be seen in civilian clothes at Attorney General Jeff Sessions' elbow in an event Monday in which Sessions welcomed "the largest class of immigration judges in history – 44 new immigration judges."

The USS Cole case is in limbo. Spath suspended pretrial hearings in February until a higher court reviews whether and what kind of contempt authority he could wield as a Guantanamo war court judge.

But Thursday, after spotting the photo of Spath with Sessions, defense lawyers for the accused Cole bomber asked the U.S. Court of Appeals for Military Commissions Review to throw out all of Spath's rulings since he took the case in 2014.

It's a two-fold issue: Department of Justice lawyers are part of the Cole case prosecution team. Moreover, defense lawyers argue that given the long lead time to get a so-called administrative judge's job, Spath no doubt applied for the position while still on the USS Cole trial.

So they argued that all of Spath's rulings should be overturned as compromised by his after-Air Force job pursuit.

"Any disinterested party would question the impartiality of a judge who is seeking employment from one of the parties appearing before him. It's an obvious conflict of interest," said Navy Capt. Brian Mizer, lead defense attorney for Abd al Rahim al Nashiri, a Saudi man awaiting a death-penalty trial as the alleged leader of the Cole bombing plot.

"Everyone knows that the average time for hiring and screening for an administrative law judge numbers in the years. So it is very likely that he applied for that job several years ago."

Seventeen U.S. sailors died in al-Qaida's suicide bombing of the USS Cole warship off Aden, Yemen, on Oct. 12, 2000. Al Nashiri has been in U.S. custody since 2002, sent four years in CIA prisons and was charged at the military court here in 2011. His defense lawyers noted in their 25-page filing, obtained by McClatchy, that they had already asked case prosecutors when precisely Spath first applied for the Department of Justice job – and the prosecutors denied knowing about it, and declined to find out.

On. Oct. 31, Spath convicted Marine Brig. Gen. John Baker, the Chief Defense Counsel for military commissions, of contempt of court for refusing to reinstate civilian defense attorneys who quit the case over what they termed an ethical conflict. Spath ordered the general, also a military lawyer, to serve 21 days confinement for disobeying orders and fined him $1,000.

A federal judge overturned Baker's conviction. Justice Department attorneys chose not to appeal.

In their brief the defense attorneys said that, based on an Immigration Court timetable for the hiring of new judges, Spath had likely applied for the job more than 250 days ago, and sought to rush Nashiri's death-penalty case to trial. In addition, Mizer noted that immigration judges, by law, "serve at the pleasure of the attorney general."

"Colonel Spath was, at best, attempting to rush the proceedings forward so that he could wrap up (Nashiri's) case before his employment with the Department of Justice was scheduled to begin, or more nefariously, seeking to curry favor as a 'reliable' employee as his application to be an immigration judge was being reviewed," Mizer and co-counsel Navy Lt. Alaric Piette wrote.

At the Department of Justice, deputy spokesman Devin O'Malley refused to confirm that Spath was among the 44 as-yet to be identified judges Sessions addressed on Monday. "Immigration judges cannot be confirmed until he or she is sworn in," O'Malley said.

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