Immigration Law

Second judge in a row leaves USS Cole case to join immigration court

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Photo courtesy of U.S. Navy/Getty Images

This fall, the former judge in a high-profile Guantanamo terrorism case caused controversy by leaving the military in order to become an immigration judge. Another judge was appointed to replace him. Now, the replacement judge is also leaving to become an immigration judge, the Miami Herald reported Monday.

Col. Shelly Schools of the Air Force has accepted a position as an immigration judge, according to a court filing obtained by the Herald, and will retire from the military “in the relatively near future.”

Schools was appointed to hear the case of Abd al-Rahim al-Nashiri, who is accused of orchestrating the suicide bombing of the Navy ship the USS Cole for al-Qaida. The bombing killed 17 sailors and wounded 39 others. Al-Nashiri was captured in 2002 and subjected to “enhanced interrogation” at secret CIA sites overseas for four years before being sent to Guantanamo. His trial started in 2011.

See also: Legal ethics questions and accusations of spying on the defense have stymied a Guantanamo terrorism trial

Nevertheless, it’s still in preliminary hearings, held up by personnel changes, ethical issues and more. Currently, the case is in appeals before the U.S. Court of Appeals for the District of Columbia Circuit, which is considering whether the prior judge—Air Force Col. Vance Spath—had an obligation to disqualify himself from the case when he applied for a job as an immigration judge. Al-Nashiri’s defense argues that because some of the prosecutors in the case are civilian Justice Department employees and the immigration courts are run by the Justice Department, Spath may have felt the need to curry favor with his prospective employer by making rulings favorable to the prosecution.

The same argument won’t apply to Schools, who has never convened any hearings during her months as the judge assigned to al-Nashiri’s case. However, in light of her retirement, civilian prosecutors Joseph Palmer and Danielle Tarin wrote in the Jan. 4 filing that they would not oppose any defense request for another judge.

Al-Nashiri’s detailed defense counsel, Navy Lt. Alaric Piette, first raised the issue in a Dec. 22 request that the prosecution preserve evidence related to Schools’ pursuit of the immigration judge job.

The news comes on the heels of the federal government’s announcement that it has killed another person accused of orchestrating the USS Cole bombing, Jamal al-Badawi. The Washington Post reported Jan. 6 that U.S. Central Command reported al-Badawi’s death by U.S. airstrike. The Post and other outlets did not mention al-Nashiri or specify what relationship he might have had to al-Badawi.

Piette told the ABA Journal in 2018 that al-Nashiri was at the fringes of the bombing at best. He suggested that al-Badawi and Khalid bin Attash, another Guantanamo prisoner accused of helping to plan the Sept. 11 attacks, both bore responsibility for the Cole bombing.

“It gets me angry, frankly, that the government has sort of sold this line to the victims’ family members that my guy is the guy and as long as he is not convicted, they don’t have justice,” Piette said. “Especially knowing what they know, I find it very offensive.”

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