legal ethics

Prosecution in USS Cole case at Guantanamo appeals suspension of trial

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U.S. Naval Station at Guantanamo Bay, Cuba.

The chief prosecutor in the USS Cole bombing trial has appealed the judge’s decision to suspend the case, the Miami Herald and Law360 report.

Lead prosecutor Mark Miller filed a notice of appeal Wednesday, saying he plans to appeal the decision by the presiding judge in the Guantanamo Bay case, Air Force Lt. Col. Vance Spath, to shut the trial down indefinitely.

The one-paragraph filing says Miller is appealing to the United States Court of Military Commission Review, but did not provide a legal basis for appeal.

The filing further muddles the question of who has authority in the case of Abd al-Rahim al-Nashiri, a Saudi national who is accused of planning the suicide bombing of the USS Cole in 2000 that killed 17 American sailors.

The case was stymied in October when three civilian attorneys representing al-Nashiri quit. Rick Kammen, Rosa Eliades and Mary Spears said confidential discussions with their client have been compromised. They were given permission to quit by Marine Brig. Gen John Baker, the chief defense counsel, but Spath says the civilians may not quit without his permission.

Spath briefly sent Baker to confinement to quarters for contempt of court, but a Pentagon official deferred that sentence, which is now under appeal. The remaining military defense lawyer, Navy Lt. Alaric Piette, doesn’t have death penalty expertise and has refused to proceed without such an attorney on his team. But Spath has been unable to summon the civilian lawyers back, despite ordering arrest warrants for two of them.

On Feb. 16, Spath convened court, then spent 30 minutes explaining his frustration at the challenges to his authority and a lack of action from the Pentagon. He said he thought the civilian defense lawyers were attempting to revolt against the military commission system, which they’d agreed in writing to work within. After a sleepless night, Spath said, he’d decided he needs clear answers before continuing the trial.

“We need action from somebody other than me. And we’re not getting it,” Spath said in an earlier Miami Herald article.

At least one survivor, Navy Senior Chief Petty Officer Joe Pelly (ret.), told the Herald he was sickened that the trial hasn’t moved forward in six years.

Al-Nashiri’s trial started in 2011, making it the base’s longest-running death penalty case. He has been held at Guantanamo since 2006.

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