GUANTANAMO BAY NAVY BASE, Cuba _ The judge in the trial of the man accused of planning the bombing of the USS Cole on Friday shut down the proceedings over his inability to get defense lawyers back to the death-penalty case.
Air Force Col. Vance Spath has for months now disagreed with the Chief Defense Counsel for Military Commissions, Marine Brig. Gen. John Baker, over the general's decision and authority that released three lawyers of record from the case in October when they asked to resign over an ethical issue. On Nov. 1, after Baker refused to return veteran death-penalty defender Rick Kammen and civilian attorneys Rosa Eliades and Mary Spears to the case _ the judge sentenced the general to 21 days of confinement in his quarters for disobeying an order.
Friday morning, on the last day of a weeklong hearing in which Eliades and Spears ignored prosecution subpoenas to appear at court by video feed, Spath assembled defense and prosecution attorneys in the court and offered a 30-minute monologue.
He listed his frustrations at having his orders ignored, uncertainty over his authority raised by the Marine general's decision-making and inaction by Pentagon officials to help him. At one point he said he was considering retiring from the Air Force, then declared that he needed clear answers on how to proceed.
"I am abating these proceedings indefinitely," he said twice, at one point adding: "We're done until a superior court tells me to keep going."
He then walked off the bench at 10:12 a.m., declaring: "We are in abatement. We are out. Thank you. We're in recess."
The man accused of orchestrating the Oct. 12, 2000, bombing of the Navy warship off Yemen that killed 17 American sailors was not in court. Spath ruled, before abating, that Abd al Rahim al Nashiri had voluntarily waived his attendance, even though the prisoner had asked a prison lawyer about the proposed mode of transportation to the war court compound, Camp Justice, that day.
A survivor of the al-Qaida bombing and the father of a sailor killed on the ship are at the base this week to watch the proceedings; Friday morning they were apparently too shaken up to comment on the development.
Baker, the chief defense counsel, says that the war court rules invest in his job the authority to release attorneys of record from ongoing cases "for good cause." That's what he did in October, based on his knowledge of classified information and an independent legal ethics expert's opinion.
An underlying issue was the judge's refusal to let defense lawyers pursue an inquiry into something classified that Kammen discovered during a meeting last summer with Nashiri in a site set up for USS Cole defense teams to meet. It is different from a Sept. 11 terror trial attorney-client meeting site. Without the investigation, and the possibility of litigation, the lawyers said, they had lost confidence in attorney-client confidentiality _ and had to resign.
Spath rejects both things. He said he has ruled there is no intrusion of the meetings, and that the judge, not the chief defense counsel, gets to decide what lawyers come and go.
"We need somebody to tell us, 'Is that really what that says despite every other court system in America thinking differently?' " Spath said Friday. "We need action from somebody other than me. And we're not getting it."
A day earlier, the judge questioned senior career Department of Defense lawyer Paul Koffsky, by video link from the Pentagon, about his supervisory role regarding the office of war court defense lawyers _ and Koffsky replied that he had no authority to order war court defense attorneys to do anything, or to intervene in the resignations.
Spath then said in open court he was considering calling Secretary of Defense Jim Mattis to testify.
Spath said repeatedly over two days that the military commissions process was at risk of being infected by defense defections if nobody stepped in. He accused Pentagon-paid defense attorneys of working to "undermine a process" they had agreed in writing to work within by honoring the rules that govern them.
He said Friday morning he made the decision to stop the trial after a sleepless night and a walk on a treadmill to "calm me down."
He then talked at length about when people in the military can lawfully defy orders and said it did not apply to his decision-making in the Nashiri case.
"I hope cool minds reflect on what my orders have been. I'm not ordering the Third Reich to engage in genocide," he said. "This isn't My Lai," a reference to the 1968 massacre of villagers in Vietnam by U.S. soldiers. He said parties to the court had a duty to comply with subpoenas, Bar rules and his orders. "Those are the extent of my orders. Not war crimes, people. It's just stunning where we have come."
