Federal Government Unsuccessfully Seeks to Reinstate Rulings in al-Nashiri Military Commissions Proceeding

Earlier this year, the prosecution in the military death penalty case of alleged mastermind of the 2000 U.S.S. Cole bombing, Abd al-Rahim al-Nashiri, was dealt a stunning setback by the U.S. Court of Appeals for the D.C. Circuit, which vacated more than four years of rulings in the case issued by former presiding judge Colonel Vance Spath. A few months later, the prosecution unsuccessfully attempted to reinstate many of these rulings under a new judge but instead received further rebuke from the court. The federal government has been seeking a death sentence against Mr. al-Nashiri since 2011 through the Court of Military Commission Review system but is still mired in pretrial proceedings, almost 10 years later.

Col. Spath was appointed to preside over Mr. al-Nashiri’s trial in the fall of 2014. In late summer of 2017, three members of Mr. al-Nashiri’s defense team quit, citing the government’s monitoring of attorney-client communications. This move left only one attorney, Lieutenant Alaric Piette, to defend Mr. al-Nashiri—even though Lt. Piette possessed none of the necessary training or experience to serve as lead counsel in a capital case. Over the course of the next several months, Col. Spath unsuccessfully sought to compel the defense team to return to the case, while Lt. Piette participated in the ongoing pretrial proceedings only to say at every juncture that he objected to the case moving forward without the assistance of “learned counsel.” On February 16, 2018, Col. Spath abated the proceedings in the case. That summer rumors began to circulate that Col. Spath had been seeking an immigration judgeship while still presiding over Mr. al-Nashiri’s case. These rumors were confirmed in September 2018, when the DOJ published a list of new immigration judges that included Col. Spath.

The D.C. Circuit granted a writ of mandamus to consider Col. Spath’s potential conflict of interest in the Mr. al-Nashiri case, and in April 2019, it issued a decision vacating Col. Spath’s rulings from the prior four years. Although the Government objected to the additional delay that the court’s order would cause, as it would effectively undo all progress that had been made in the case thus far, the court concluded that doing so was justified and necessary to ensure the overall integrity of the proceedings. The court wrote, “Any institution that wields the government’s power to deny life and liberty must do so fairly, as the public’s ultimate objective is not in securing a conviction but in achieving a just outcome.” 

The difficulties in Mr. al-Nashiri’s prosecution did not end with the D.C. Circuit’s decision, however. On November 7, 2019, the new presiding judge, Colonel Lanny Acosta, issued a strong condemnation of the prosecution’s proposal for sharing information with the defense. After Col. Acosta took over the case, the prosecution sought reconsideration and reaffirmation of more than 30,000 pages of motions that had been granted by Col. Spath but vacated by the D.C. Circuit—primarily those motions seeking the court’s approval to provide discovery to the defense as “summaries and substitutions in lieu of the underlying classified documents.”

Much of the “substitution” and “summary” information that the Government was providing the defense concerned the CIA’s Rendition, Detention, and Interrogation program and related to Mr. al-Nashiri’s treatment while in secret CIA detention. Through a Freedom of Information Act request, however, the defense and Col. Acosta were able to obtain many of the unredacted versions of the same information that the Government had been summarizing rather than disclosing to the defense directly. According to Col. Acosta, a review of this information indicated that the process by which the Government was “summarizing” the information to provide the defense had “produced deletions that could fairly be characterized as self-serving and calculated to avoid embarrassment,” which ultimately “undermines any contention the redactions are narrowly tailored to a legitimate need to protect national security.” Further, the judge found that “many of the summaries are so significantly altered that they seem insufficient to meet the requirement that they place the defense in substantially the same position as would discovery of the underlying documents.”

As a result, the judge denied the Government’s motion to reproduce the tens of thousands of pages that had been accepted as fulfilling the Government’s discovery obligations during Col. Spath’s tenure, instead ordering that the underlying documents be provided through traditional discovery. The onus is now on the Government to assert and justify specific privilege as to each of the original documents that it wishes to withhold, increasing the likelihood that Mr. al-Nashiri’s pretrial proceedings will continue for many months, and perhaps years, to come.