Concerns over ‘unlawful influence’ are holding up the trial of alleged USS Cole bomber

GUANTANAMO BAY NAVAL BASE, Cuba — The military judge in the trial of the alleged USS Cole bomber said Tuesday hearings will not move forward until he determines whether a senior Pentagon official was unlawfully involved in the trial proceedings.

Although the judge, Air Force Col. Vance Spath, expressed his desire for the trial of Abd al-Rahim al-Nashiri to carry on, he said facing the issue of unlawful influence is “critical” and prevents the court from moving to address other motions, including evidentiary hearings.

“We have to resolve that issue before we continue to anything else,” Spath said. “Because of the issues at hand … I am not comfortable (moving on).”

Al-Nashiri faces the death penalty for his alleged involvement in the 2000 bombing of the USS Cole off the coast of Yemen. The attack resulted in the deaths of 17 Americans.

Al-Nashiri, who has been held in Guantanamo since he was first arraigned in 2006, is also one of five high-level detainees named in the Senate’s 2014 CIA torture report as having been subjected to torture and interrogation methods, including waterboarding and rectal feeding.

Spath has been ordered to permanently move to Guantanamo for the trial by retired Marine Maj. Gen. Vaughn Ary, who oversees the court where Guantanamo detainees are prosecuted in the role as convening authority. Ary is scheduled to testify Wednesday morning as to why he gave relocation orders to Spath.

Defense lawyers are arguing that the Pentagon illegally swayed Ary’s directive. Defense attorney Cmdr. Brian Mizer, dressed in his full white Navy uniform, asked Tuesday to call four additional witnesses.

Al-Nashiri’s attorneys identified more potential witnesses, which include three legal advisers to the military court, to testify based on documents the prosecution provided to them. Spath ordered Monday that Pentagon lawyers hand over to the defense informal communications, such as emails and memos, that were pertinent to Ary’s relocation orders.

Spath plans to make a ruling on the relevance of these witnesses based on Ary’s testimony Wednesday. He asked the prosecution to notify the four people of their potential involvement as witnesses so they could testify quickly if Spath determines they are needed in the trial. In black judicial robes, the judge joked that he preferred the faster Internet in Washington, DC, over the slower access at the military base.

Lt. Col. Robert Moscati, the deputy chief prosecutor, argued that all four witnesses were not relevant to Ary’s order, but Spath ensured him he was not making a definitive ruling yet on whether they would testify.

“I just want to have them closer than farther away,” Spath said. “I’m just trying to find efficiencies … so we’re working next week.”

While the court is convened for this week and the next, Spath said he hoped he would be able to hear evidence, but the precedence of determining unlawful influence would likely take up the rest of the time.