Appeals panel examines Guantánamo Judge’s next job on ethical grounds
An appeals panel on Friday limited the authority of the judge presiding over hearings in the USS Cole bombing as it deemed an ethical challenge, the latest obstacle in the slowly advancing path to trial in Guantanamo Bay’s longest-running war crimes prosecution.
It’s about whether Col. Lanny J. Acosta Jr.the judge, was under an obligation to resign earlier this year when he landed a civilian job with the Department of Defense following his retirement from the military on Sept. 30.
Lawyers for Abd al-Rahim al-Nashiri describe Colonel Acosta’s pursuit of his next job — as a clerk in the Air Force’s judiciary — as a conflict of interest, as he was simultaneously seeking employment at the Pentagon while pursuing a case chaired by the Pentagon.
Mr. Nashiri, a Saudi prisoner, is accused of orchestrating the October 12, 2000 bombing of the destroyer Cole off the coast of Yemen, which killed 17 American sailors. He has been in US custody since 2002 in a case that has been hampered by challenges, including the 2021 judge’s decision, which has since been overturned, to accept evidence derived from torture in certain circumstances. No trial date has been set.
In 2019, a federal court overturned two years’ worth of rulings after Cole’s defense attorneys prevailed in a similar challenge. In that case, judge Vance H Spath did not reveal that he was seeking employment with the Department of Justice, which plays a key role in the prosecution of the Cole case. Eventually, he got a job as an immigration judge.
Colonel Spath subsequently left immigration court and took a civilian legal job at the Pentagon, serving as special counsel to the Air Force’s two top attorneys.
Lawyers for Mr. Nashiri took on the latest ethical challenge after Colonel Acosta announced in court on April 19 that he had applied for the civilian job in the Air Force the day before. The judge said he had considered the possibility and concluded that “there is no potential conflict between my role as a military judge in this case and my application.” Then on On May 26, he announced that he had tentatively offered the job and accepted it.
Defense attorneys have asked the U.S. Court of Military Commissions Review to prevent Colonel Acosta from presiding this month. They also want his statements removed from the file since April 18.
Judges and lawyers of the Air Force are on temporary duty at the Guantanamo Court.
Colonel Acosta and Cole prosecutors reject the idea of conflict and have scheduled three weeks of hearings starting Monday.
On Friday, a three-judge panel of the Court of Military Commissions Review issued an injunction limiting what the judge can do next week as it considers whether to stop proceedings. He can hear testimony and receive evidence on pending motions, but he cannot rule on any of them, with one exception: he can decide whether to disqualify himself.
The panel also allowed him to provide more information about how he got the new job. Mr. Nashiri’s lawyers have said they want to question him in a public hearing.
Colonel Acosta has had the case since 2019. He has yet to make a number of important preliminary rulings, including a motion to dismiss the case or remove the possibility of a death penalty on the grounds of excessive government misconduct related to the torture of Mr. Nashiri by the CIA
The problem of judges retiring or leaving for other assignments is endemic to the war crimes court at Guantánamo Bay. Unlike federal court, many military attorneys alternate as judges between roles of defense, prosecutor, and staff attorneys, creating a revolving door in wartime court.
Of the four active cases at Guantánamo, Colonel Acosta and one Navy judge in the Bali bombing leave, and a Colonel of the Army based in Germany arrived this week to take over the presentation procedure in another case.
Colonel Acosta is also Guantánamo’s chief judge, an administrative position that will be filled when he leaves court.