War court judge pursued immigration job for years while presiding over USS Cole case
By CAROL ROSENBERG | Miami Herald | Published: November 20, 2018
MIAMI (Tribune News Service) — A military judge in what was to be Guantanamo’s first death-penalty trial spent more than half his tenure on the war court bench seeking civilian employment as an immigration judge, documents obtained by McClatchy show.
Air Force Col. Vance Spath was presiding in the USS Cole tribunal — the precursor to Guantanamo’s more high-profile Sept. 11 capital murder trial — and was looking for a way out. He would eventually secure that position with an appointment from former Attorney General Jeff Sessions this summer.
But a review of his federal, civilian employment file, obtained under the Freedom of Information Act, shows that Spath pursued the job at a time when Justice and Defense Department prosecutors were appearing before him in the USS Cole case but didn’t disclose it. His application, in fact, highlighted his role in the Guantanamo case as well as his role as the chief Air Force trial judge.
It was Nov. 19, 2015, and Spath submitted an application for employment with the Justice Department led by Attorney General Loretta Lynch. Spath got the USS Cole case against Saudi captive Abd al Rahim al Nashiri about 16 months earlier.
“I have a significant degree of experience in managing high volume litigation,” Spath wrote in his application. The USS Cole tribunal was on hold while the U.S. Court of Military Commissions Review reviewed, and then ultimately reinstated, some charges Spath had dismissed. “The case at Guantanamo Bay, Cuba, has significant media and federal government interest, and it again requires the constant demonstration of the appropriate judicial temperament,” Spath wrote.
Spath would first get an offer for a temporary seat in the immigration court from Lynch on Sept. 23, 2016. After Donald Trump took office as president, Sessions renewed the offer on March 20, 2017, but he then began salary negotiations. Sessions signed an appointment order on June 6, 2018, and Spath was ultimately sworn in as an immigration judge three months later, on Sept. 28.
The timeline is significant and obtained exclusively using FOIA at a time when defense attorneys in the USS Cole death-penalty case were denied information on Spath’s job search through judicial discovery by the U.S. Court of Military Commissions Review, the USCMCR. Saudi Abd al Rahim al Nashiri is accused of plotting al-Qaida’s suicide bombing off Aden, Yemen, on Oct. 12, 2000, that killed 17 American sailors and wounded dozens more. He could be executed if he is convicted.
A federal court put the Nashiri case on hold Nov. 7 to consider an appeal by Nashiri’s lawyers that argues Spath’s pursuit of an immigration judge position — while presiding in a case that has Department of Justice prosecutors — constituted “judicial misconduct.” They accuse Spath of trying to rush the case to trial so he “could retire from the military at full pension and assume additional employment in the Justice Department.” They want the U.S. Court of Appeals for the District of Columbia Circuit to revoke all of Spath’s rulings in the case from the moment he began his behind-the-scenes pursuit of the civilian judge’s job.
Nashiri’s military defense attorney, Navy Capt. Brian Mizer, said Spath had an obligation to disclose the job application, and let defense attorneys question him on the record. Spath never did.
“Whether it’s the Department of Justice or Taco Bell you need to know whether your judge is an applicant for employment,” he said after hearing about the application and negotiation timeline. “This is a big problem and I think any objective observer who looks at it knows that. The system has to be fair and it also has to appear to be fair. How does it do that if you are negotiating for employment from one of the parties? And I would add, in a death case.”
Spath and his legal assistant at the immigration court in Arlington, Virginia, did not respond to requests for comment sent using email, LinkedIn messaging and voicemail.
McClatchy asked for Spath’s employment record under FOIA on July 17 after a reporter learned of his pursuit of employment and a Department of Justice spokesman refused to confirm it. The Executive Office of Immigration Review, a DOJ subsidiary, released 311 pages of internal emails. Some of the material is blacked out.
His application included a letter from retired Army Col. Fred Taylor, who had served as Spath’s attorney-adviser in the USS Cole case and was by then trial judiciary staff director. Taylor offered his “enthusiastic and unqualified endorsement” of Spath for an immigration judge’s job. Spath, Taylor wrote, “consistently treated the counsel, some being uniformed judge advocates, some being Department of Justice prosecutors” as well as the civilian learned counsel and others “with utmost dignity and respect.” It was dated Nov. 5, 2015.
Another letter in Spath’s application file, dated Nov. 12, 2015, came from Air Force Col. Mark Allred, a judge on the Air Force Court of Appeals and on the USCMCR. “I cannot imagine how you could find a finer candidate,” wrote Allred, who retired from the military in 2016. “His command of the courtroom is superb. His mastery of the law is evident in every ruling. His demeanor is perfect.”
Allred was chief Air Force Judge before Spath. He wrote the letter while sitting on both the Air Force Court of Appeals and the war court appellate panel, where he now says he “actually did so very little because of how things were so snagged in the system.” Allred retired from the U.S. military in 2016 and left both benches.
Reached in London recently, he said it was “quite commonplace among judges that I knew as they got close to retirement” to get letters of recommendation. Administrative law judge positions, such as at immigration court, were considered “kind of their dream job.”
Allred said he wrote dozens of recommendations, for lawyers and other judges. He said he was unaware of any specific Air Force policy on a judge’s duty to disclose a job application or leave a case because of the nature of the job being sought.
“I could see there might be some kind of conflict there,” he said, saying you’d have to consider a possible conflict on a case-by-case basis. “I don’t see it as a specious argument, nor am I particularly alarmed by it.”
Spath submitted the application and letters in an 18-month hiatus of USS Cole case hearings, starting March 3, 2015, because prosecutors were appealing one of his rulings and ending on Sept. 7, 2016.
By then, Spath had already interviewed for the immigration judge job, on March 29-30, 2016, and signed a release form for a background check in which he noted, “I do have an active TS-SCI security clearance,” which is the specialized Top Secret clearance required for anyone practicing law at the Nashiri trial.
The interviews took place 19 months before Spath would capture national attention in a showdown with defense attorneys in the USS Cole case. The lawyers had found microphones hidden in their attorney-client meeting room, but Spath ruled they could not investigate who was listening. He also told them they could not inform Nashiri about the suspected breach of confidentiality, because the accused bomber did not have a security clearance. So death-penalty defender Rick Kammen and two other Pentagon-paid civilian defense lawyers resigned, leaving a Navy lieutenant with no death-penalty experience on the case.
The trio got permission to quit from Marine Brig. Gen. John Baker, the chief defense counsel. Spath, however, declared the general had no authority to do so, and ordered Baker to reinstate them. Baker knew about the hidden microphone at a time when the public and defendant did not. He refused.
Spath found the general in contempt of the war court on Nov. 1, 2017, a first in the history of the military commissions set up by George W. Bush after the Sept. 11 attacks — and had military police confine the general to his quarters, a trailer on the Guantanamo court complex called Camp Justice.
A senior Pentagon official released Baker two days later, but the conviction stood until a federal judge struck it down June 18, saying Spath had no such contempt authority.
Unknown to the public, or the defense teams, was that six months earlier on May 17, 2017, Spath had concluded salary negotiations for a post-retirement immigration judge job to be based in Arlington, Virginia, and pay $164,620. Earlier, the director of the Department of Justice’s Office of Attorney Recruitment and Management, Jamilla Frone, had offered him $114,940 for the job, according to a letter to him with no date on it.
Sessions signed a temporary appointment order on March 20, 2017, and a week later Spath submitted an earning statement to the Immigration Court.
He was formally made an offer on June 21, 2017, and responded by email on July 12, 2017, at 7:12 a.m. that he needed a delay and would be traveling “for the next three weeks.” He held his seventh round of hearings at Guantanamo July 31 to Aug. 4.
He would continue to negotiate a delayed start date throughout the defense attorney resignation showdown. On Feb. 16, 2018, Spath froze the proceedings, saying he would not continue until a “superior court” resolved the question of who can relieve defense attorneys of record — the judge or the chief defense counsel, among others.
But the night before, at 8:02 p.m. on Feb. 15, Spath emailed the Executive Office of Immigration Review confirming receipt of an email offering him a July 8 start-of-employment date.
Spath, his court staff, prosecutors and the lone Navy lieutenant left to defend Nashiri returned to the United States on Feb. 17. That was Spath’s last known trip to Guantanamo — and haggling over the colonel’s Air Force retirement date and immigration court start date continued behind the scenes.
On June 6, 2018, Sessions signed a document converting a temporary job into formal appointment, according to one internal email, and another said Spath’s intended hire date was July 9, 2018.
But on June 14, 2018, a deputy chief immigration judge, Christopher Santoro, wrote in an email that there were problems: Spath’s retirement hadn’t gone through and, without explaining who, noted “they’re holding to see what the Secretary of Defense is going to do … The case he is on at Guantanamo Bay has enough visibility that his departure is beyond AF [Air Force] control.“ In addition, he made reference to a delay in getting a new war court judge a clearance, apparently to replace Spath.
Air Force Col. Shelly Schools got the case Aug. 6 but has yet to hold a hearing. By Sept. 10, Spath was training as an immigration judge and was photographed at Sessions’ elbow. On Nov. 7, the U.S. Court of Appeals in Washington, D.C., issued a stay to consider whether Spath was required to disclose his intentions to retire and potentially withdraw from the case because he was pursuing a job with the Department of Justice.
That same day, as it happens, Sessions left the job as attorney general.
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